Ryder v. Mitchell, 00SC889.

Citation54 P.3d 885
Decision Date16 September 2002
Docket NumberNo. 00SC889.,00SC889.
PartiesGloria RYDER, PH.D., Petitioner, v. Denise MITCHELL, Respondent, and Concerning Juanita Benetin, Attorney-Respondent.
CourtSupreme Court of Colorado

Law Offices of Peter R. Bornstein, Peter R. Bornstein, Denver, Colorado, Attorneys for Petitioner.

Juanita Benetin, P.C., Juanita Benetin, Denver, Colorado, Law Office of Marcia E. Wade, Marcia E. Wade, Boulder, Colorado, Attorneys for Respondent and Attorney-Respondent.

Justice KOURLIS delivered the Opinion of the Court.

In this case, we must determine whether a child therapist owes a duty of care to her patients' mother in a circumstance in which she allegedly misdiagnosed symptoms of parental alienation and reported her findings to the father and to the children's new therapist. The court of appeals found that such a duty exists. Mitchell v. Ryder, 20 P.3d 1229, 1233 (Colo.App.2000). We disagree and now conclude that the duty the therapist owes the children themselves is primary and may, under certain circumstances, require disclosure to the parents or other involved parties. Creating a duty to the parents could conflict with or disserve the primary duty. Furthermore, the possibility of liability to the children in the event of breach or malpractice serves as an adequate safeguard against negligent treatment by the therapist. Accordingly, in balancing the factors necessary, we reverse the court of appeals and decline to impose a duty upon Gloria Ryder in favor of Denise Mitchell.

I. Facts

The plaintiff, Denise Mitchell,1 was divorced from her husband, David Mitchell,2 in 1995. In the divorce proceeding, the trial court awarded custody of the couple's two minor children to the plaintiff. That court denied the plaintiff's request that Mitchell receive only supervised parenting time with the children. Based upon a counselor's testimony, the court found that Mitchell was a fit parent who was entitled to substantial contact with the children. The court provided for a period without overnight parenting time followed by phased-in overnight visitation.

According to the plaintiff, in the summer of 1996, when the children, ages five and three, began overnight visits with their father, the plaintiff began noticing disturbing behavioral and psychological changes in both children. The plaintiff became convinced that Mitchell was abusing the children during his parenting time. In June 1996, she contacted attorney Nancy Simmons, a specialist in high-conflict family law matters, to represent her in pursuit of modification of Mitchell's parenting time rights and child support obligations.

Simmons suggested the prompt involvement of a competent health care professional and recommended the names of at least two potential therapists to examine and treat the five-year-old boy. The plaintiff selected psychologist Dr. Gloria Ryder, the defendant.3

At the initial session, the plaintiff signed an express authorization permitting the five-year-old "to receive psychotherapy with Gloria J. Ryder, Ph.D." On the boy's information form, the plaintiff indicated that the reason for the therapy was "D.V. [Domestic Violence] — Out of control behavior." Shortly thereafter the plaintiff signed a similar authorization for the three-year-old girl.4 The plaintiff expressed her concerns to Ryder that Mitchell was abusing the children. Based on her therapy with the children, parental interviews, and investigation of available records, including consultations with third parties, the defendant formed the opinion that Mitchell did not pose a danger to his children.5 Rather, the defendant determined that the five-year-old's behavior problems stemmed from the boy's feelings that his father had abandoned him. Simmons and Ryder both testified in this case that, when Ryder indicated during the course of a conference call that there was nothing to support an accusation of sexual abuse, the plaintiff became enraged and indicated that she would sue Ryder for not making the necessary findings to "terminat[e] Mr. Mitchell's parenting time with the children."

Subsequently, the plaintiff sought to transfer the children to a new therapist. In response to this decision, on February 26, 1997, the defendant wrote the plaintiff a letter expressing her opinion that it was not in the boy's best interest to transfer to a new therapist. She stated that the boy was in the midst of addressing critical issues regarding the divorce, including his feelings of loss and abandonment. She asserted that the interruption in the psychotherapeutic process was detrimental to the five-year-old's psychological, emotional, cognitive, and social functioning. She further expressed concern that the child might perceive that his therapist was also abandoning him.

The letter next addressed the plaintiff's concerns that Mr. Mitchell was "a threat to the children and that parental visitation should be terminated, or at best, supervised parenting time be put in place." Ryder reconfirmed her prior assurances that Mitchell did not present a danger to the children. She expressed her opinion that there was no reason to terminate or modify the court-ordered parenting time or Mitchell's relationship with the children.

In addition, Ryder discussed the issue of parental alienation, which she asserted she had previously raised with the plaintiff. She stated that the plaintiff had continually made assertions, lacking any factual support, that Mitchell was abusing the children. She wrote that the plaintiff had been adamant that Mitchell's parenting time be terminated and had continually pressured the defendant to file child abuse charges against Mitchell. The defendant opined in the letter that since she would not file the allegations, or recommend modified parenting time, the plaintiff withdrew the child from treatment. She stated:

Repeatedly, you have been told there are no indicators of child abuse that warrant the actions you want taken. Instead, you have been repeatedly told that there are clear indicators of parental alienation. You have not wanted to address the parental alienation issue, but stay focused on your objectives of terminating Mr. Mitchell's parenting time with his children. It is very important for you to look at your own parental alienation. This will only serve to hurt your children.

The defendant concluded her letter by expressing hope that the plaintiff would reconsider the decision to discontinue therapy.

The defendant sent a copy of the letter to Mitchell and to the children's new therapist. Shortly thereafter, Mitchell filed a motion for a change of custody, seeking to move the custody of the children from the plaintiff to himself. The plaintiff responded with a motion to limit Mitchell's parenting time. The court denied both motions and custody and parenting time remained unchanged.

The plaintiff then initiated this action, in which she sued Ryder and Simmons for breach of fiduciary duty and negligence, seeking damages for having to respond to Mitchell's motion for a change of custody. In its Order dated February 10, 1998 the trial court granted Ryder's motion to dismiss the breach of fiduciary duty claim in which the plaintiff was asserting a breach of a duty owed to the children. The trial court found that only the children were Ryder's patients, and that the record evidenced no support for the plaintiff's allegation that she, too, was a patient. The trial court specifically held that any causes of action arising from an alleged breach of duty owed to the children would have to be brought by the plaintiff on behalf of the children and not on her own behalf.

However, citing Montoya v. Bebensee, 761 P.2d 285, 289 (Colo.App.1988), the court held that the defendant did owe a duty of care to the plaintiff in making any public report or recommendation based on an opinion she formed while treating the children. Therefore, the court concluded that a genuine issue of fact remained as to whether the defendant negligently formulated and published the opinions expressed in the letter.

Revisiting the issue in an Order dated February 17, 1999, a different trial judge granted the defendant's Motion for Summary Judgment in its entirety, dismissing the case with prejudice. That court found that, under Colorado law, the defendant owed no duty to the plaintiff which would allow her to bring negligence claims. The court acknowledged the holding in Montoya, however, relying on Card v. Blakeslee, 937 P.2d 846, 850 (Colo. App.1996), the court held that the letter the defendant sent to the plaintiff, and on which she copied Mitchell, did not constitute the kind of "public report or recommendation" that would trigger the duty announced in Montoya. Finally, the court noted that the letter did not accuse the plaintiff of sexually abusing the children or committing any other criminal offense.

Subsequently, after an evidentiary hearing, the trial judge also granted the defendant's Motion for Attorney's Fees. The court concluded that the plaintiff's claims in this case were substantially groundless, frivolous, and vexatious, both legally and factually.

The plaintiff appealed the entry of summary judgment on her negligence claims and both plaintiff and her attorney appealed the trial court's award of costs. The court of appeals reversed the trial court's orders and remanded the case. Mitchell v. Ryder, 20 P.3d 1229, 1234 (Colo.App.2000). Noting that the question of whether a defendant owes a plaintiff a duty is a question of law that is reviewed de novo, it concluded that the defendant owed the plaintiff a duty to use due care in formulating and publishing her opinion that the plaintiff's actions resulted in parental alienation. Id. at 1231-32. In considering the factors involved in determining whether the law should impose a duty, the court of appeals reasoned: the risk of injury to a custodial parent who is falsely accused of parental alienation is significant and foreseeable; the...

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