Peck v. Counseling Service of Addison County, Inc.

• Decision Date: 14 June 1985
• Docket Number: No. 83-062,83-062
• Citation: 499 A.2d 422,146 Vt. 61
• Parties: Charles and Margaret PECK v. The COUNSELING SERVICE OF ADDISON COUNTY, INC.
• Court: Vermont Supreme Court

Page 422

499 A.2d 422

146 Vt. 61

Charles and Margaret PECK v. The COUNSELING SERVICE OF ADDISON COUNTY, INC.

No. 83-062.

Supreme Court of Vermont.

June 14, 1985.

Reargument Denied Aug. 5, 1985.

Charity A. Downs of Conley & Foote and Jon C. Stahl of Langrock Sperry Parker & Wool, Middlebury, for plaintiffs-appellants.

Priscilla K. Reidinger and Robert A. Mello of Downs Rachlin & Martin, Burlington, and Sessions, Keiner & Dumont, Middlebury, for defendant-appellee.

William B. Gray and Michael G. Furlong of Sheehey, Brue & Gray, Burlington, for amicus curiae Vermont Psychiatric Assn.

Philip H. Zalinger, Jr. of Paterson, Walke & Pratt, P.C., Montpelier, for amicus curiae Vermont Council of Community Mental Health Services, Inc.

Before BILLINGS, C.J., and HILL, UNDERWOOD, PECK and GIBSON, JJ.

HILL, Justice.

Plaintiffs-appellants appeal from a judgment order of the Addison Superior Court that found the defendant-appellee, The Counseling Service of Addison County, Inc. (hereinafter Counseling Service) ¹ not liable in negligence to the plaintiffs, and dismissing the plaintiffs' cause of action with prejudice. Because we hold that a mental health professional ² has a duty to take reasonable steps to protect third persons from threatened physical harm posed to them by his or her patient, we reverse.

The pertinent facts are as follows. During the night of June 27, 1979, John Peck, age twenty-nine, son of the plaintiffs, set fire to the plaintiffs' barn. ³ The barn, located 130 feet from the plaintiffs' house, was completely destroyed. At the time of this incident, John Peck was an outpatient of the Counseling Service, under the treatment of one of defendant's counselor-psychotherapists. ⁴ On June 20, 1979, John, who was living at home with the plaintiffs, had had an argument with his father. During this argument, his father called him "sick and mentally ill" and told him he should be hospitalized. John packed his suitcase and left home. He arrived at the Counseling Service and told his therapist that he had had a fight with his father, that he was upset with his father, and that "he didn't think his father cared about him or respected him." The therapist arranged for John to stay at the home of John's grandparents and scheduled a counseling session for the next day, June 21. At the June 21st session, John was still angry with his father. At the start of the next counseling session on June 26, John asked his therapist if they could continue to discuss his feelings about his father. John told his therapist that he "wanted to get back at his father." In response to a question by the therapist about how he would get back at his father, John stated, "I don't know, I could burn down his barn." After the therapist and John discussed the possible consequences of such an act, John, at the request of the therapist, made a verbal promise not to burn down his father's barn. Believing that John would keep his promise, the therapist did not disclose John's threats to any other staff member of the Counseling Service or to the plaintiffs.

The plaintiffs brought this action in superior court to recover damages for their property loss which they claim resulted from the defendant's negligence. Plaintiffs' complaint contains two counts. The first count alleges negligence on the part of the defendant in failing to take reasonable steps to protect the plaintiffs from the threat posed by their son. The second count alleges professional malpractice.

Defendant moved to dismiss the plaintiffs' complaint on the grounds that it failed to state a claim upon which relief can be granted. V.R.C.P. 12(b)(6). By agreement of the parties, this motion was treated as a V.R.C.P. 56 motion for summary judgment. V.R.C.P. 12(b). The trial court denied defendant's motion by concluding that there was a genuine issue as to material facts which required resolution before a determination could be made on whether a duty was owed to the plaintiffs, and thus, whether the plaintiffs' complaint stated a cause of action. Defendant then moved for permission to take an interlocutory appeal which motion was denied. The case proceeded to a trial by court. Following the trial, the court issued extensive findings of fact and conclusions of law on all the material issues. The court then dismissed the case with prejudice because it determined that under current Vermont law there was no basis to find that the defendant owed a duty to take action to protect the plaintiffs.

The plaintiffs argue that the defendant, by and through its employees, knew or should have known, in accordance with the prevailing standards of the mental health profession, that John Peck represented an unreasonable risk of harm to them. Plaintiffs further contend that by its failure "to take steps that were reasonably necessary to protect" the plaintiffs, the defendant breached a duty of care owed to them.

Generally, there is no duty to control the conduct of another in order to protect a third person from harm. Restatement (Second) of Torts § 315 (1965). A recognized exception to this general rule arises in the situation "where there is ... a special relationship between two persons which gives the one a definite control over the actions of the other...." Harper & Kime, The Duty To Control the Conduct of Another, 43 Yale L.J. 886, 895 (1934). An exception also arises where a special relationship exists which imposes a duty upon one to control the actions of another, Restatement, supra, § 315(a), or, where a special relationship gives a third person a right to protection. Id. at § 315(b).

Defendant contends that the relationship between a community mental health agency and a voluntary outpatient does not give rise to a duty to protect third persons because of the absence of control over the outpatient. See, e.g., Hasenei v. United States, 541 F.Supp. 999, 1009-10 (D.Md.1982) (relationship between psychiatrist and voluntary outpatient typically lacks sufficient element of control necessary to create duty to protect third person, and lack of control is often encouraged); see also Stone, The Tarasoff Decisions: Suing Psychotherapists to Safeguard Society, 90 Harv.L.Rev. 358, 366 (1976) (therapist seeing outpatient has no control over patient).

Whether or not there is actual control over an outpatient in a mental health clinic setting similar to that exercised over institutionalized patients, the relationship between a clinical therapist and his or her patient "is sufficient to create a duty to exercise reasonable care to protect a potential victim of another's conduct." Tarasoff v. Regents of the University of California, 17 Cal.3d 425, 435, 551 P.2d 334, 343, 131 Cal.Rptr. 14, 23 (1976). Vermont already recognizes the existence of a special relationship between a physician and a patient that imposes certain legal duties on the physician for the benefit of third persons. Physicians, health officials and health institutions are required, in patient cases of venereal and other contagious diseases, to warn others in order to protect the public health. 18 V.S.A. §§ 1001, 1004, 1007, 1041, 1092, 1101. We see no reason why a similar duty to warn should not exist when the "disease" of the patient is a mental illness that poses an analogous risk of harm to others. E.g., McIntosh v. Milano, 168 N.J.Super. 466, 489-90, 403 A.2d 500, 512 (Law Div.1979).

Defendant also argues that a duty to take action to protect third persons should not be imposed on a therapist because a therapist is no better able than anyone else to predict future violent behavior. Cocozza & Steadman, The Failure of Psychiatric Predictions of Dangerousness: Clear and Convincing Evidence, 29 Rutgers L.Rev. 1084 (1976). This Court recognizes the difficulty of predicting whether "a particular mental patient may pose a danger to himself or others. This factor alone, however, does not justify barring recovery in all situations. The standard of care for [mental] health professionals adequately takes into account the difficult nature of the problem facing [them]." Lipari v. Sears, Roebuck & Co., 497 F.Supp. 185, 192 (D.Neb.1980).

Defendant states that John's therapist, acting as a reasonably prudent counselor, "concluded in good faith that John Peck would not burn his parent's [sic] barn." The trial court nonetheless found that the therapist was negligent, and did not act as a reasonably prudent counselor, because her good faith belief was based on inadequate information and consultation. Sufficient evidence was presented to the court to support this finding.

Plaintiffs' psychiatric expert testified that, given (1) John's past history of impulsive assaultive behavior, (2) his medical treatment for the control of epilepsy, (3) the possibility of a brain disorder, associated with epilepsy, that increasingly diminished John's capacity for exercising good judgment, and (4) his past alcohol abuse, all of which were known to the therapist, the failure to reveal John's threat was inconsistent with the standards of the mental health profession. The evidence also revealed that at the time of John's threat the therapist was not in possession of John's most recent medical history. The Counseling Service did not have a cross-reference system between its therapists and outside physicians who were treating the medical problems of its patients. Nor did the Counseling Service have any written policy concerning formal intra-staff consultation procedures when a patient presented a serious risk of harm to another. The defendant's own expert testified that a therapist cannot make a reasonable determination of a patient's propensity for carrying out a threatened act of violence without knowledge of the patient's complete medical history.

Our decision today requires only that "the therapist ... exercise 'that reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of [that professional specialty] under similar...