Rozycki by Rozycki v. Peley

• Decision Date: 21 September 1984
• Citation: 199 N.J.Super. 571,489 A.2d 1272
• Parties: Thomas ROZYCKI, Jr., an infant, by his Guardian ad Litem, Thomas ROZYCKI, Sr., Michael Rozycki, an infant, by his Guardian ad Litem, Thomas Rozycki, Sr., Thomas Rozycki, Sr., Individually, Patricia Rozycki, Individually, Chad Mieden, an infant, by his Guardian ad Litem, Douglas Mieden, Martin Mieden, an infant, by his Guardian ad Litem, Douglas Mieden, Douglas Mieden, Individually, Darlene Mieden, Individually, Robert Fariello, an infant, by his Guardian ad Litem, Ralph Fariello, Ralph Fariello, Individually, and Phyllis Fariello, Individually, Plaintiffs, v. Arthur H. PELEY and Catherine C. Peley, Defendants.
• Court: New Jersey Superior Court

Page 571

199 N.J.Super. 571

489 A.2d 1272

Thomas ROZYCKI, Jr., an infant, by his Guardian ad Litem,

Thomas ROZYCKI, Sr., Michael Rozycki, an infant, by his

Guardian ad Litem, Thomas Rozycki, Sr., Thomas Rozycki, Sr.,

Individually, Patricia Rozycki, Individually, Chad Mieden,

an infant, by his Guardian ad Litem, Douglas Mieden, Martin

Mieden, an infant, by his Guardian ad Litem, Douglas Mieden,

Douglas Mieden, Individually, Darlene Mieden, Individually,

Robert Fariello, an infant, by his Guardian ad Litem, Ralph

Fariello, Ralph Fariello, Individually, and Phyllis

Fariello, Individually, Plaintiffs, v. Arthur H. PELEY and Catherine C. Peley, Defendants.

Superior Court of New Jersey, Law Division,

Somerset County.

Decided Sept. 21, 1984.

Francis X. Hermes, Somerville, for plaintiffs (Thiele & Hermes, Somerville, attorneys; Richard Niemiec, Somerville, on brief).

James McLaughlin and Daniel E. Chase, Trenton, for defendants (McLaughlin & Cooper, Trenton, attorneys; Daniel E. Chase, Trenton, on brief).

MEREDITH, J.S.C.

The issue presented in this case is whether the duty to warn, first addressed in our courts in McIntosh v. Milano, 168 N.J.Super. 466, 495, 403 A.2d 500 (Law Div.1979), should be imposed on a wife who has knowledge of her husband's probable dangerousness.

Plaintiffs in this action are a group of infant boys who were victims of the sexual and physical assault of defendant, Arthur H. Peley. This action was instituted by their parents as guardians ad litem. The complaint alleges that the infant plaintiffs suffered physical and psychological injury as a direct result of defendant's assaults.

The complaint also names Catherine C. Peley, wife of Arthur Peley. The plaintiffs allege that Catherine Peley knew of her husband's pedophilia and thus had a duty to warn plaintiffs of the possible danger to them. The case is now before this court on a motion for summary judgment by Catherine Peley.

I.

THE FACTUAL BACKGROUND.

In 1977 defendant, Arthur Peley, was arrested on a charge of debasing the morals of a minor. Peley applied to the pretrial intervention program and was accepted. As a condition of this acceptance Peley, accompanied by his wife, underwent psychiatric treatment.

The incidents which form the basis of the present civil action occurred over a period of time from May 17, 1981 through December 21, 1981. A complaint was filed charging Peley with sexual assault in violation of N.J.S.A. 2C:14-2(b).

The police report states that a number of parents living in Peley's neighborhood had called the Hillsborough Township Police to report that Peley had assaulted their children on various occasions. The acts in question occurred at the rear of the Peley home, in the swimming pool. Statements were taken from the juveniles involved, confirming these assaults.

A warrant for arrest was issued on March 19, 1982. On April 19, 1982 an indictment was returned charging Peley with six counts of sexual assault. This was subsequently dismissed and an accusation was filed charging sexual assault in the second degree in violation of N.J.S.A. 2C:14-2(b).

One week after his arrest for these offenses, on March 23, 1982, Peley entered Carrier Clinic where he remained until his discharge on June 30, 1982. The final diagnosis was pedophilia.

Peley pled guilty to one count of sexual assault in the second degree in violation of N.J.S.A. 2C:14-2(b).

On July 30, 1982 Peley was sentenced to the Adult Diagnostic and Treatment Center, Avenel, New Jersey, for a period of five years.

The instant complaint was filed on November 10, 1982. A declaratory judgment action was instituted between Peley's personal attorney and his homeowners insurance carrier to determine if his insurer is required to provide a defense of this action. Trial was held on June 6, 1984 and judgment was entered in favor of the insurer.

Discovery from Peley, who is currently at the Adult Diagnostic Center at Avenel, has been somewhat incomplete. Based partially on the incomplete status of discovery plaintiffs argue that the present motion is premature.

The present motion, however, requires the court to determine whether Catherine Peley owed a duty to plaintiffs. The existence of a duty is a question of law to be determined by the court and may appropriately be resolved on a motion for summary judgment. See McIntosh v. Milano, supra, 168 N.J.Super. at 495, 403 A.2d 500. In light of the fact that plaintiffs have had the opportunity to depose Arthur and Catherine Peley, the fact that there is still some discovery to be conducted is not a bar to this court's determination of the duty owed by Catherine Peley.

II.

THE DUTY TO WARN: APPLICABILITY TO A NON-MENTAL HEALTH PROFESSIONAL.

Plaintiffs argue that Catherine Peley owed a duty to warn the infant plaintiffs or their parents of Arthur Peley's pedophilia. Catherine Peley contends that no such duty exists and, even were such a duty to be imposed, she was not given sufficient notice of her husband's condition to give rise to a duty to warn.

Plaintiffs' contention is essentially based on public policy considerations. They argue that there is a broad public interest in preventing sexual assault on small children which requires the imposition of a duty. They analogize the instant case to situations in which parents have been held responsible for the torts of their children, or landowners held liable for the dangerous condition of their property.

In McIntosh v. Milano, the court adopted § 315 of the Restatement, Torts 2d (1965). The court stated ... Generally, a person (the first person) does not have the duty to control the conduct of another person (the second person and potential tortfeasor) so as to prevent that person from harming a third person unless a special relationship exists either between the first person and the second person imposing such a duty or between the first person and the third person giving him a right to protection. [168 N.J.Super. at 483, 403 A.2d 500]

The law recognizes certain types of special relationships which give rise to a duty of care. These include: the physician-patient relationship, N.J.S.A. 26:4-15; see also Earle v. Kuklo, 26 N.J.Super. 471, 474-475, 98 A.2d 107 (App.Div.1953) (physician has a duty to report manifestations of communicable diseases such as tuberculosis and to warn third persons of possible exposure); the landlord-tenant relationship, Braitman v. Overlook Terrace Corp., 68 N.J. 368, 382, 346 A.2d 76 (1975) (landlord owes duty to take reasonable measures to safeguard tenants from foreseeable criminal acts of third persons); common carrier-guest, Skillen v. West Jersey & Seashore R.R. Co., 96 N.J.L. 492, 494, 115 A.2d 372 (E. & A.1921) (carrier owes passenger duty of exercising high degree of care to protect him from injury by other passengers on its cars). Other special relationships which give rise to this type of duty include innkeeper-guest, possessor of land-invitee and school-student. See Goldberg v. Housing Auth. of Newark, 38 N.J. 578, 583-588, 186 A.2d 291 (1962).

Attorneys, also, have been held to owe a special duty to their clients and to the public at large. For example, an attorney with knowledge of his client's tendency to abuse his children must report that information to the appropriate authorities. N.J.Sup.Ct.Advisory Comm. on Professional Ethics, Op. 280 (1982); see also James E. George, et al., "The Therapist's Duty To Protect Third Parties: A Guide For The Perplexed," 14 Rutgers L.J. 637, 642, n. 43 (1983).

There has been a considerable amount of attention focused lately on the duty owed by mental health professionals and, specifically, whether psychiatrists, psychologists and therapists owe a "duty to warn" intended victims of their patients of the patient's probable dangerousness.

The California courts have recognized the psychiatrist-patient relationship as such a "special relationship" and have required psychiatrists to warn the intended victims of their patients. Tarasoff v. Regents of the University of California, 131 Cal.Rptr. 14, 17 Cal.3d 425, 551 P.2d 334 (1976). Tarasoff was a wrongful death action brought against, among others, psychotherapists employed by the university to recover for the murder of plaintiff's daughter by an out-patient treated at the student health center.

Plaintiff's parents filed suit alleging, inter alia, that the therapist had a duty to warn them of the threat to their daughter which duty had been breached. On this issue the court held:

When a therapist determines, or pursuant to the standards of his profession should determine, that his patient presents a serious danger of violence to another, he incurs an obligation to use reasonable care to protect the intended victim against such danger. The discharge of this duty may require the therapist to take one or more of various steps, depending upon the nature of the case. Thus it may call for him to warn the intended victim or others likely to apprise the victim of the danger, to notify the police, or to take whatever other steps are reasonably necessary under the circumstances. [131 Cal.Rptr. at 201, 17 Cal.3d at 431, 551 P.2d at 340]

This issue was addressed in the New Jersey courts in McIntosh v. Milano, supra. Relying on Tarasoff, the court determined that a mental health professional may have a duty to warn in certain circumstances. It held:

[A] psychiatrist or therapist may have a duty to take whatever steps are reasonably necessary to protect an intended or potential victim of his patient when he determines, or should determine, in the appropriate factual setting and in accordance with the standards of his profession established at trial, that the patient is or may present a probability of danger to that person. The relationship giving rise to that duty may be found either in that existing between the therapist and the patient, as was alluded to in Tarasoff II, or in the more broadly based obligation a practitioner may have to protect...