Petersen v. State, 49490-8

Citation671 P.2d 230,100 Wn.2d 421
Decision Date20 October 1983
Docket NumberNo. 49490-8,49490-8
PartiesCynthia E. PETERSEN, Respondent, v. The STATE of Washington and Does 1 through 10, Appellants.
CourtUnited States State Supreme Court of Washington

Ken Eikenberry, Atty. Gen., Narda Pierce, Asst. Atty. Gen., Olympia, for appellants.

Rush, Kleinwachter & Hannula, William J. Rush, Vernon W. Harkins, Tacoma, for respondent.

DOLLIVER, Justice.

On May 14, 1977, plaintiff Cynthia Petersen was injured in an automobile accident in Tacoma. Plaintiff was making a lawful turn at an intersection when her car was struck by a vehicle driven by Larry Knox. The Knox vehicle apparently ran a red light and was traveling approximately 50 to 60 miles per hour. Knox appeared to witnesses to be greatly influenced by drugs.

At the time of the accident, Knox was on probation for a second degree burglary conviction. In May 1975, he had been sentenced by Superior Court Judge Hardyn B. Soule to 15 years in prison, suspended, subject to certain conditions of probation. Among the conditions of Knox's probation were that he participate in mental health counseling and refrain from using controlled substances.

Five days before the accident occurred, Knox had been released from Western State Hospital, where he had been receiving psychiatric care. On April 16, 1977, Knox had taken a knife to himself and cut out his left testicle. His brother had found him lying in a blood soaked bed and had taken him to Madigan Army Hospital for emergency medical treatment. After hospital staff reported delusional and hallucinogenic tendencies, Knox was evaluated by a mental health professional pursuant to RCW 71.05.150. On April 20, 1977, pursuant to RCW 71.05.180, Knox was admitted to Western State Hospital to be involuntarily detained for not more than 72 hours.

While at Western State Hospital, Knox was treated by Dr. Alva Miller, Clinical Director of the institution. Although Dr. Miller learned that Knox was on probation as a result of a burglary conviction, he apparently was unaware of the terms of probation. Dr. Miller also learned Knox had an extensive history of drug abuse, including the frequent use of the drug "angel dust" during the previous year. In fact, Knox told Dr. Miller he had taken angel dust just prior to the incident in which he emasculated himself.

As a result of his observation, Dr. Miller diagnosed Knox as having a "schizophrenic reaction, paranoid type with depressive features." Dr. Miller testified that his opinion at the time was that the "schizophrenic symptomatology was due primarily to the use of angel dust." Consequently, Dr. Miller prescribed Navane, an antipsychotic medication, for Knox.

On April 22, 1977, Dr. Miller and Betty Suttle, a psychiatric nurse, filed a petition in Pierce County Superior Court requesting authority to detain Knox for an additional period of up to 14 days. At a hearing on the petition, Dr. Miller and Nurse Suttle testified that, in their opinion, Knox was gravely disabled as a result of his drug abuse and presented a likelihood of serious harm to himself. They indicated to the court that further hospitalization at Western State was desirable and that Knox was not ready for less restrictive care. The Superior Court found Knox was gravely disabled and granted the petition for involuntary treatment.

Dr. Miller continued treatment and evaluation of Knox, including administration of the drug Navane. On May 8, 1977, just prior to his discharge, Knox was allowed to go home for Mother's Day but was required to return in the evening. That evening Knox was apprehended by hospital security personnel while driving his car on the hospital grounds in a reckless fashion that involved spinning his car in circles.

Nevertheless, Dr. Miller discharged Knox from the hospital the following morning. At the time, it was Dr. Miller's opinion Knox was not schizophrenic but that he had suffered a schizophrenic-like reaction from the angel dust he had taken. In Dr. Miller's opinion Knox had recovered from the drug reaction, was in full contact with reality, and was back to his usual type of personality and behavior.

Five days later, the accident occurred in which Cynthia Petersen was injured. As previously mentioned, Knox was under the influence of drugs at the time of the accident. It was later learned that Knox had flushed the Navane he received from Western State Hospital down a toilet.

Plaintiff brought this action against the State alleging it negligently treated Knox by failing to protect her from his dangerous propensities. Plaintiff argued that the failure of Dr. Miller to seek either additional confinement or to disclose information about Knox's parole violation was the proximate cause of her injuries. The jury agreed and rendered a verdict in her favor.

The State raises a number of issues on appeal. (1) The psychiatrist had no duty to protect plaintiff from the dangerous propensities of a patient. (2) Even if the psychiatrist did have such a duty, the State is immune from liability for breach of the duty. (3) Plaintiff failed to present sufficient evidence that the actions of the psychiatrist were the proximate cause of plaintiff's injuries. (4) The trial court erred in submitting to the jury the question whether the psychiatrist acted with gross negligence in failing to petition the court for further confinement of Knox. (5) The trial court abused its discretion by allowing plaintiff to present evidence of Knox's subsequent criminal conduct and medical diagnosis and improperly refused an instruction limiting the use of evidence of Knox's subsequent criminal conduct. (6) The trial court incorrectly instructed the jury as to the liability of officers of the State when they act in good faith without gross negligence. (7) The trial court abused its discretion by allowing Superior Court Judge Soule to answer hypothetical questions posed by plaintiff.

Plaintiff raises an issue on cross appeal regarding the filing of a bond and the refusal of the trial court after plaintiff obtained her judgment to exonerate the bond which had been posted.

I

The question as to whether the State has a duty to protect potential victims from the dangerous propensities of a state hospital patient is twofold. First, does a state hospital psychiatrist have a duty to seek additional confinement of a patient who remains potentially dangerous after initial hospitalization? Second, under the specific circumstances of this case, was Dr. Miller required, or even allowed, to disclose information about the violation by Knox of the conditions of his parole to the Superior Court or to Knox's probation officer?

A

It is well settled that an essential element in any negligence action is the existence of a legal duty which the defendant owes to the plaintiff. See, e.g., Baerlein v. State, 92 Wash.2d 229, 231, 595 P.2d 930 (1979); Haslund v. Seattle, 86 Wash.2d 607, 611 n. 2, 547 P.2d 1221 (1976); LaPlante v. State, 85 Wash.2d 154, 159, 531 P.2d 299 (1975). Under the common law, a person had no duty to prevent a third party from causing physical injury to another. Lipari v. Sears, Roebuck & Co., 497 F.Supp. 185, 188 (D.Neb.1980); Tarasoff v. Regents of Univ. of Cal., 17 Cal.3d 425, 435, 551 P.2d 334, 131 Cal.Rptr. 14 (1976). See generally Harper & Kime, The Duty to Control the Conduct of Another, 43 Yale L.J. 886 (1934). A number of courts, however, have recognized an exception to this rule of nonliability where a special relationship exists between the defendant and either the third party or the foreseeable victim of the third party's conduct. See, e.g., Lipari v. Sears, Roebuck & Co., supra; Tarasoff v. Regents of Univ. of Cal., supra; Bradley Center, Inc. v. Wessner, 161 Ga.App. 576, 287 S.E.2d 716 (1982); McIntosh v. Milano, 168 N.J.Super. 466, 403 A.2d 500 (1979). The Restatement (Second) of Torts reflects the general rule of nonliability and its exceptions:

There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless

(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or

(b) a special relation exists between the actor and the other which gives to the other a right to protection.

Restatement (Second) of Torts § 315 (1965).

We have not yet considered whether a psychiatrist has a duty to protect against injuries caused by a patient. In Kaiser v. Suburban Transp. Sys., 65 Wash.2d 461, 398 P.2d 14, 401 P.2d 350 (1965), we allowed a cause of action against a doctor favoring a third person who was injured by the doctor's patient where the doctor failed to warn his patient, a bus driver, of the side effects of a drug prescribed for the treatment of a nasal condition. The plaintiff, a bus passenger, was injured when the driver lost consciousness and struck a telephone pole. We held that since the doctor should reasonably have foreseen the harm resulting from his failure to warn of the side effects of the drug the bus passenger was entitled to present evidence that the doctor's negligence was the proximate cause of her injuries.

The seminal case regarding the duty of a psychiatrist to protect against the conduct of a patient is Tarasoff v. Regents of Univ. of Cal., 17 Cal.3d 425, 551 P.2d 334, 131 Cal.Rptr. 14 (1976). In Tarasoff the plaintiffs alleged the defendant therapists had a duty to warn their daughter of the danger posed to her by one of the therapists' patients. The Tarasoff plaintiffs were parents of Tatiana Tarasoff, a young woman killed by a psychiatric patient. Two months prior to the killing, the patient informed his therapist that he intended to kill a young woman. Although the patient did not specifically name Tatiana as his intended victim, plaintiffs alleged, and the trial court agreed, that the defendant therapists could have readily identified the endangered person as Tatiana.

Applying Restatement (Second)...

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