Perreira v. State

• Court: Colorado Court of Appeals
• Writing for the Court: KELLY
• Citation: Perreira v. State, 738 P.2d 4 (Colo. App. 1986)
• Decision Date: 09 October 1986
• Docket Number: 84CA0402
• Parties: Vendria PERREIRA, Surviving Spouse of Augustus J. Perreira, Jr., (Deceased), Plaintiff-Appellee and Cross-Appellant, v. The STATE of Colorado and Its Agency, Fort Logan Mental Health Center, and Eric Anders, M.D., Defendants-Appellants and Cross-Appellees. . III

Page 4

738 P.2d 4

Vendria PERREIRA, Surviving Spouse of Augustus J. Perreira Jr., (Deceased), Plaintiff-Appellee and Cross-Appellant, v. The STATE of Colorado and Its Agency, Fort Logan Mental Health Center, and Eric Anders, M.D. Defendants-Appellants and Cross-Appellees.

No. 84CA0402.

Colorado Court of Appeals Div. III.

Oct. 9, 1986.

Rehearing Denied Jan. 15, 1987.

Certiorari Granted (Perreira) June 8, 1987.

Dean P. Grossenbach, Richard K. Walsh, Charles W. Hemphill, Colorado Springs, for plaintiff-appellee and cross-appellant.

Hall & Evans, Alan Epstein, Carol M. Welch, William James Barber, Denver, for defendants-appellants and cross-appellees.

KELLY, Judge.

The defendants, State of Colorado and its agents, Fort Logan Mental Health Center and Eric Anders, M.D. (the State), appeal from the judgment entered on a jury verdict for the plaintiff, Vendria Perreira, finding the defendants liable for the wrongful death of plaintiff's husband, a Colorado Springs police officer who was shot and killed by a mentally ill man, Seth Andrew Buckmaster, Jr. The State argues, among other things, that it owed no duty to Officer Perreira when it discharged Buckmaster from custody at the Fort Logan Mental Health Center some four months before the killing. We agree and therefore reverse.

During the years before the homicide of Officer Perreira, Buckmaster had been involuntarily committed to the Fort Logan Mental Health Center on several prior occasions under the 72-hour hold-and-treat provisions of § 27-10-105, C.R.S. In each of those instances, medical staff at the Center diagnosed Buckmaster as mentally ill; however, he did not remain at the Center voluntarily, nor did the medical staff certify him as requiring extended involuntary confinement under § 27-10-107, C.R.S.

Buckmaster was committed again in October 1979, and on that occasion, defendant Anders did certify Buckmaster as requiring short term involuntary confinement and treatment for up to three months. His condition had markedly deteriorated, and he appeared to be either gravely disabled, or a danger to others or to himself.

In December 1979, Dr. Anders and other psychotherapists decided that Buckmaster had improved and was no longer certifiable under § 27-10-107, C.R.S. Dr. Anders then discharged Buckmaster from confinement under § 27-10-110, C.R.S., after Buckmaster refused to remain at the Center voluntarily.

In April 1980, Buckmaster created a disturbance in a Colorado Springs convenience store and refused to leave when asked to do so by a clerk. The clerk then flagged down Officer Perreira and requested his assistance. The officer entered the store, spoke with Buckmaster, then escorted him into the store parking lot. Moments later, Buckmaster killed Officer Perreira without warning.

Plaintiff sued the defendants alleging that the State was negligent in treating and releasing Buckmaster and that this negligence was the proximate cause of Officer Perreira's death. The trial court found that the State owed Officer Perreira a duty as a matter of law and submitted the case to the jury.

The State argues that: The available evidence did not indicate Buckmaster was a threat to others; Officer Perreira was not a foreseeable victim; and the State had no duty to control Buckmaster's conduct. The State contends that the "special relation" rule of Restatement (Second) of Torts § 315 (1965) operates to relieve it of a legal duty to Officer Perreira as a matter of law. We agree.

The existence and scope of a legal duty to a particular plaintiff is a question to be determined by the trial court as a matter of law. Metropolitan Gas Repair Service, Inc. v. Kulik, 621 P.2d 313 (Colo.1980). A party has a duty to avoid an unreasonable risk of harm to another if he can reasonably foresee that his acts or omissions will cause such harm. Leake v. Cain, 720 P.2d 152 (Colo.1986). There is no duty, however, to prevent a third person from harming another unless a special relation exists "between the actor and the wrongdoer or between the actor and the victim." Leake v. Cain, supra. See Restatement (Second) of Torts § 315 (1965).

Medical professionals involved in the care and treatment of a mentally ill patient have a legal duty under the "special relation" rule to prevent the patient from harming himself or others only if the patient in their care constitutes a danger to himself or to the safety of others. Section 27-10-101, et seq., C.R.S. This danger may be shown by evidence of injurious acts, attempts, or threats by the patient. People v. Taylor, 618 P.2d 1127 (Colo.1980).

Public entities which have taken an individual into custody have a duty to prevent such person from harming others while in custody. See Leake v. Cain, supra (Police officers' duty existed while intoxicated individual was in their custody). See also Restatement (Second) of Torts § 319 (1965) (Duty of those in charge of person having dangerous propensities). A...