Rollins v. Petersen, 880280

Citation813 P.2d 1156
Decision Date05 June 1991
Docket NumberNo. 880280,880280
PartiesMelinda ROLLINS, personal representative of the Estate of Marcel Schopf, and Royal Insurance Company, Plaintiffs and Appellants, v. Jon Michael PETERSEN, Dale R. Brown, Susette A. Brown, and State of Utah, State Hospital, Defendants and Appellees.
CourtSupreme Court of Utah

Page 1156

813 P.2d 1156
Melinda ROLLINS, personal representative of the Estate of
Marcel Schopf, and Royal Insurance Company,
Plaintiffs and Appellants,
Jon Michael PETERSEN, Dale R. Brown, Susette A. Brown, and
State of Utah, State Hospital, Defendants and Appellees.
No. 880280.
Supreme Court of Utah.
June 5, 1991.

Page 1157

Robert M. McRae, Harry H. Souvall, Vernal, for Melinda Rollins.

R. Paul Van Dam, Stephen J. Sorenson, Salt Lake City, for the state.

Robert L. Jeffs, Provo, for the Browns.

Page 1158


The Estate of Marcel Schopf (the estate) brought this wrongful death action against the State of Utah, the Utah State Hospital (the hospital), Dale R. and Susette A. Brown, and Jon Michael Petersen. The trial court granted summary judgment in favor of the hospital and the Browns. We affirm.

On appeal from an order granting summary judgment, we view facts and inferences in the light most favorable to the losing party. See, e.g., Beach v. University of Utah, 726 P.2d 413, 414 (Utah 1986). We recite the facts accordingly. State v. Verde, 770 P.2d 116, 117 (Utah 1989).

Jon Michael Petersen was admitted to the hospital in May of 1982, having been admitted on four previous occasions. His diagnosis was schizo-affective disorder, and his commitment to the hospital has since been renewed continuously by the fourth district court. Petersen's admission in 1982 resulted from an incident in which he held hostage and stabbed his roommate. His history at the hospital shows that he is quick to anger and is sometimes verbally abusive, but that he does not stay angry, bear grudges, or become physically aggressive. His hospital record includes two escapes: an AWOL in September of 1983, and a "walk away" from a halfway house in March of 1985.

Petersen had been assigned to the hospital's adult unit 11, a locked ward. Prior to November 1, 1986, Petersen's treatment team had given him a blue "self-escort" pass. Holders of blue passes at the hospital have the privilege of leaving the ward without supervision for a period not to exceed an hour and fifteen minutes, during which they may buy snacks, use pay phones, walk the grounds, etc. When the holder of a blue pass leaves the locked ward, the required procedure is that the patient "sign out," i.e., inform the ward attendant of the time the patient leaves, the patient's expected destination, and a description of the patient's clothing. A patient who has not returned within five minutes of the expected time is considered a "potential AWOL," and the staff takes measures to locate the patient.

Patients at the hospital also have certain "industrial" duties. Petersen's assigned industrial duty was to return lunch trays used in the ward to the kitchen on another floor. He requested and was granted permission to waive the sign-out requirement when he left the ward regularly for this specific purpose.

On the morning of November 1, 1986, Petersen refused several requests to get out of bed and take his medication. Thus, by the time he did comply, his privileges had been revoked for the day. After lunch, between 12:15 and 12:30 p.m., Petersen left the ward to return lunch trays in accordance with his industrial assignment. He did not sign out. He then left the hospital grounds entirely and, finding the Browns' unattended automobile with its engine running on a nearby residential street, stole the car and drove away. Some minutes later (and approximately an hour after leaving the hospital), as he attempted to evade police on Interstate 15, Petersen lost control of the car, crossed into the path of oncoming traffic, and collided head-on with another vehicle, killing Marcel Schopf.

Schopf's estate brought suit against the Browns, alleging that they negligently failed to secure their automobile and that Schopf's death proximately resulted. The estate also alleged that the hospital was negligent in failing to comply with its established policies, in allowing Petersen to walk away from the facility, and in not adequately instituting its own AWOL procedures to recover him. The trial court granted summary judgment for the Browns and the hospital on the ground that neither owed a duty of care to Schopf. The court also granted summary judgment in favor of the hospital on the alternative ground of governmental immunity. On appeal, the estate argues that summary judgment was improperly granted for the Browns and the hospital. It argues that section 41-6-105 of the Code, which requires owners of cars to secure their vehicles when left unattended, creates a duty owed by the Browns to Schopf. The estate

Page 1159

also contends that under the Restatement, the hospital owed a duty to Schopf as well.

Summary judgment is appropriate only when there exists no genuine issue of material fact and the moving party is entitled to judgment as matter of law. Utah R.Civ.P. 56(c); see, e.g., Landes v. Capital City Bank, 795 P.2d 1127, 1129 (Utah 1990); Utah State Coalition of Senior Citizens v. Utah Power & Light Co., 776 P.2d 632, 634 (Utah 1989). We accord no deference to the trial court's conclusions of law, reviewing them for correctness. Landes, 795 P.2d at 1129; Madsen v. Borthick, 769 P.2d 245, 247 (Utah 1988).

We first consider the estate's claim that the trial court erred in finding that no valid cause of action for negligence had been alleged against the hospital because it owed the decedent no duty of care. As we stated in Beach v. University of Utah, 726 P.2d 413 (Utah 1986), "One essential element of a negligence action is a duty of reasonable care owed to the plaintiff by defendant.... Absent a showing of a duty, [the plaintiff] cannot recover." Beach, 726 P.2d at 415 (citing Hughes v. Housley, 599 P.2d 1250, 1253 (Utah 1979); Williams v. Melby, 699 P.2d 723, 726 (Utah 1985)); accord Ferree v. State, 784 P.2d 149, 151 (Utah 1989). In Beach and our recent decision in Ferree, we found that the relationship between the allegedly negligent institution and the plaintiff was not such that a duty of care was owed. In both cases, we affirmed summary judgment for the institutions.

In the present case, the hospital argues that Ferree controls and that it owed no duty to protect the decedent from Petersen. In Ferree, a patient was released from a corrections center for the weekend. While on release, he murdered Dean Ferree. We upheld a grant of summary judgment for the corrections center, finding that the center owed no duty of care to Ferree, a member of the public at large. Ferree, 784 P.2d at 153. Plaintiffs here argue that Ferree is factually distinguishable. They urge that we follow the Restatement of Torts' criteria for determining when a duty is owed to third persons by a custodian who has taken control of the one causing injury. Under these criteria, plaintiffs argue, the hospital should be found to owe a duty to the decedent.

We acknowledge the general applicability in Utah of the "special relation" analysis described in sections 314 through 320 of the Restatement of Torts. See generally Restatement (Second) of Torts §§ 314-320 (1965). A brief review of that concept will assist in understanding our disposition of plaintiffs' claim under section 319. Section 315 sets out the general tort principle that one has no duty to control the conduct of third persons. The Restatement then lists two exceptions to this general rule. First, if "a special relation exists between the actor and the third person," then the actor has a duty to "control the third person's conduct." Restatement (Second) of Torts § 315 (1965). Second, if "a special relation exists between the actor" and the plaintiff, the plaintiff has "a right to [the actor's] protection," presumably against harm from third persons. Id. 1

These two exceptions are given more detailed explanation in sections 319 and 314 respectively of the Restatement. Section 319 states:

One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.

Restatement (Second) of Torts § 319. Section 314A attempts to define some of the

Page 1160

circumstances that create a special relation between the actor and the plaintiff.

(4) One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his [or her] normal opportunities for protection is under a duty [to protect] the other [against unreasonable risk of physical harm].

Restatement (Second) of Torts § 314A(4) (1965). Thus, section 314A is concerned with imposing a duty on the custodian to protect the detainee from harm, while section 319 attempts to define when the custodian has a duty to employ reasonable care to prevent a detainee from harming others.

Under the Restatement analysis, then, the critical question is whether a special relation exists that would give rise to a duty upon which liability could be based. Our recent cases of Beach and Ferree have dealt with the existence of a special relation.

In Beach v. University of Utah, 726 P.2d 413 (Utah 1986), we followed the approach of section 314A and analyzed the relationship between the student and the university to determine whether it could be characterized as "special," thereby imposing a duty on the university to protect the student from her own intoxication. In making this determination, we described as essentially pragmatic the approach we would take in dealing with claims that special relationships existed which gave rise to consequent duties:

Determining whether one party has an affirmative duty to protect another ... requires a careful consideration of the consequences for the parties and society at large. If the duty is realistically incapable of performance, or if it is fundamentally at odds with the nature of the parties' relationship, we should be loath to term that...

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