Roberts v. Salmi

• Decision Date: 18 December 2014
• Docket Number: Docket No. 316068.
• Citation: 308 Mich.App. 605,866 N.W.2d 460
• Parties: ROBERTS v. SALMI.
• Court: Court of Appeal of Michigan — District of US

308 Mich.App. 605

866 N.W.2d 460

ROBERTS

v.SALMI.

Docket No. 316068.

Court of Appeals of Michigan.

Submitted Oct. 9, 2014, at Petoskey.

Decided Dec. 18, 2014, at 9:20 a.m.

The Kemp Law Firm, PLLC (by Zachary C. Kemp ), for plaintiffs.

Kitch Drutchas Wagner Valitutti & Sherbrook (by Beth A. Wittmann and Susan D. MacGregor ) for defendant.

Before: MURPHY, C.J., and SAWYER and M.J. KELLY, JJ.

Opinion

M.J. KELLY, J.

In this suit for malpractice, plaintiffs, Lale Roberts and Joan Roberts, appeal by right the trial court's order dismissing their claims against defendant, Kathryn Salmi, LPC, who does business as Salmi Christian Counseling. On appeal, we must determine whether a mental health professional, such as a licensed professional counselor, see MCL 330.1100b(16)(e) ; 333.18101(b),¹ owes a duty of care to third persons who might be harmed by the professional's treatment of his or her patients. Specifically, we must determine whether a mental health professional has a duty to third parties (specifically, a patient's parents) who might foreseeably be implicated in abuse when the mental health professional treats a patient using techniques that cause his or her patient to have false memories of sexual abuse. For the reasons more fully explained below, we conclude that Michigan's common law recognizes a duty of care to third parties who might foreseeably be harmed by the mental health professional's use of techniques that cause his or her patient to have false memories of sexual abuse. Because the trial court erred when it dismissed Lale and Joan Roberts's claim on the grounds that Michigan does not recognize such a duty, we reverse and remand for further proceedings.

I. BASIC FACTS

In 2009, Lale and Joan Roberts had two daughters living with them at home: L, who is a person with Down Syndrome

, and her older sister, K. After it was discovered that a friend of the family had engaged in inappropriate sexual contact with K, Lale and Joan Roberts sought help for K from a mental health professional. Eventually they hired Salmi to provide counseling to K. K began to see Salmi in July 2009. K was 17 years of age when she first started counseling with Salmi. K began to live with family friends around the same time.

Shortly after Salmi began to counsel K, K purportedly remembered that her father had physically and sexually abused her since she was five years old. Salmi invited Lale and Joan Roberts to attend a group counseling session, which was held in July 2009. At the group counseling session, K allegedly confronted her father with what Lale and Joan Roberts maintain were false allegations of sexual abuse.

In September 2009, Salmi reported the allegations to the Department of Human Services. Salmi provided the investigators with a handwritten note wherein she described the abuse that K had “just remembered.” In the note Salmi stated that K told her that L had also been abused at home. Thereafter, the Department of Human Services and the Michigan State Police investigated the allegations.

The investigators found no physical evidence that L had been or was being physically or sexually abused. An investigator with the department interviewed K, and K's allegations, as recorded by the investigator, were strikingly similar to those provided by Salmi in her note. An investigator also interviewed K's older sister, who had not lived in the home for several years. She described her parents as fundamentalist Christians who hold strong beliefs and practice discipline that she felt was emotionally and physically abusive, but she nevertheless stated that she did not believe that her father would hurt L or K. She also stated that she had never observed anything that could be characterized as sexual abuse in the home. The investigator ultimately determined that it was unnecessary to take any action. Police officers also investigated and reviewed K's allegations, but no charges were brought against Lale or Joan Roberts.

In January 2012, Lale and Joan Roberts sued Salmi for ordinary negligence or malpractice. They alleged that they sent K to Salmi for counseling and Salmi treated K with “Recovered Memory Therapy.” In July 2009, they further alleged, Salmi invited them to a “joint counseling session.” At the session, K confronted her father with “false accusations of severe physical and sexual abuses.” They maintained that Salmi owed them a duty to “not improperly implant, or reinforce false memories of physical and sexual abuse in K's mind by use of hypnosis

, age regression and other psychotherapy techniques.” Lale and Joan Roberts stated that K only began to “remember” the abuse after she began treatment with Salmi and was now “adamant” that those things had actually happened. After Salmi “improperly implanted, or reinforced false memories of physical and sexual abuse,” Lale and Joan maintained, K severed all ties with her parents, investigators subjected them to civil and criminal investigations, and the community became aware of the allegations.

In her affidavit of meritorious defense, Salmi averred that she does not offer or practice “ ‘Repressed or Recovered Memory Therapy’ ” and has “at no time ... intentionally used any suggestive techniques with clients.” She also stated that she has not been trained in hypnosis

and does not use it in her practice. She addresses “claims or reports of sexual abuse when reported, but [does] not believe in exploring for such events or other traumas when not presented to me as an issue by the client.”

In October 2012, Salmi moved for summary disposition under MCR 2.116(C)(8). She argued that the trial court should dismiss the claim because K's records were protected by privilege and Lale and Joan Roberts would thus be unable to show that Salmi had negligently treated K. She also argued that under Michigan's common law, she only owed a duty of care to K. Because third parties cannot sue a therapist for damages resulting from the therapist's malpractice or treatment provided to others, she maintained, the court should dismiss the claim against her. Finally, she argued that Lale and Joan Roberts's claim was essentially a claim for the alienation of affections, which was abolished in Michigan.

The trial court held a hearing on the motion in January 2013. After hearing the parties' arguments, the trial court determined that it would be premature to dismiss the claim on the ground that Lale and Joan Roberts would, as a result of the client-therapist privilege, be unable to discover the evidence necessary to establish their claim. It also did not believe that their complaint was for alienation of affections or barred by the line of cases involving claims of malpractice made by members of the patient's family. The trial court, however, agreed that—under Michigan law—Salmi had no duty of care to avoid harming third parties by her treatment of K. For that reason, the trial court entered an order dismissing Lale and Joan Roberts's claim later that same month.

After the trial court eventually denied their motion for reconsideration in April 2013, Lale and Joan Roberts appealed in this Court.

II. SUMMARY DISPOSITION

A. STANDARDS OF REVIEW

On appeal, Lale and Joan Roberts argue that the trial court erred when it determined that under Michigan law, Salmi did not owe any duty of care to ensure that her treatment of K did not harm them. This Court reviews de novo a trial court's decision on a motion for summary disposition. Barnard Mfg. Co., Inc. v. Gates Performance Engineering, Inc., 285 Mich.App. 362, 369, 775 N.W.2d 618 (2009). This Court also reviews de novo the proper scope and application of Michigan's common law. Grandberry–Lovette v. Garascia, 303 Mich.App. 566, 572–573, 844 N.W.2d 178 (2014).

B. MCR 2.116(C)(8)

A motion under MCR 2.116(C)(8) tests the legal sufficiency of the plaintiff's claim on the pleadings alone to determine whether the plaintiff has stated a claim on which relief may be granted. Bailey v. Schaaf, 494 Mich. 595, 603, 835 N.W.2d 413 (2013). In reviewing such a challenge, this Court must accept the factual allegations stated in the complaint as true and construe them in a light most favorable to the nonmoving party.

Kuznar v. Raksha Corp., 481 Mich. 169, 176, 750 N.W.2d 121 (2008). If the claim is so clearly unenforceable as a matter of law that no factual development could possibly justify recovery, the court should dismiss the claim. Id. Salmi argued in support of her motion for summary disposition, in relevant part, that Lale and Joan Roberts's claim was unenforceable as a matter of law because they did not plead that Salmi had breached a duty recognized under Michigan law.

C. LEGAL DUTY

In order to establish a prima facie claim of negligence against Salmi, Lale and Joan Roberts had to establish that Salmi owed them a legal duty. Hill v. Sears, Roebuck & Co., 492 Mich. 651, 660, 822 N.W.2d 190 (2012) (stating that it is axiomatic that there can be no tort liability unless the plaintiff first establishes that the defendant owed a duty to the plaintiff). Whether Salmi owed Lale and Joan Roberts a duty under the circumstances involved in this case is a question of first impression in Michigan.

“ ‘Duty’ comprehends whether the defendant is under any obligation to the plaintiff to avoid negligent conduct; it does not include—where there is an obligation—the nature of the obligation: the general standard of care and the specific standard of care.” Moning v. Alfono, 400 Mich. 425, 437, 254 N.W.2d 759 (1977). Whether a defendant owes an actionable legal duty to the plaintiff is a question of law that must be decided by the court after “ ‘assessing the competing policy considerations for and against recognizing the asserted duty.’ ” In re Certified Question from the Fourteenth Dist. Court of Appeals of Texas, 479 Mich. 498, 504–505, 740 N.W.2d 206 (2007), quoting Friedman v. Dozorc, 412 Mich. 1, 22, 312 N.W.2d 585 (1981). “Thus, the ultimate inquiry in determining whether a legal duty should be imposed is whether the...