Semler v. Psychiatric Institute of Washington, D.C.

• Decision Date: 27 February 1976
• Docket Number: 74-2346,Nos. 74-2345,s. 74-2345
• Citation: 538 F.2d 121
• Parties: Helen SEMLER, Administratrix of the Estate of Natalia Semler, Deceased, Appellee, v. PSYCHIATRIC INSTITUTE OF WASHINGTON, D.C., et al., Defendants, v. Paul FOLLIARD, Appellant. Helen SEMLER, Administratrix of the Estate of Natalia Semler, Deceased, Appellee, v. PSYCHIATRIC INSTITUTE OF WASHINGTON, D.C., INC., et al., Appellants, v. Paul FOLLIARD, Third-Party Defendant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 121

538 F.2d 121

Helen SEMLER, Administratrix of the Estate of Natalia

Semler, Deceased, Appellee, v. PSYCHIATRIC INSTITUTE OF WASHINGTON, D.C., et al., Defendants, v. Paul FOLLIARD, Appellant.

Helen SEMLER, Administratrix of the Estate of Natalia

Semler, Deceased, Appellee, v. PSYCHIATRIC INSTITUTE OF WASHINGTON, D.C., INC., et al., Appellants, v. Paul FOLLIARD, Third-Party Defendant.

Nos. 74-2345, 74-2346.

United States Court of Appeals Fourth Circuit.

Argued Nov. 10, 1975.

Decided Feb. 27, 1976.

Henry M. Massie, Jr., Asst. Atty. Gen. of Virginia, Richmond, Va. (Andrew P. Miller, Atty. Gen. and Stuart H. Dunn, Asst. Atty. Gen., Richmond, Va., on brief), for Paul Folliard.

Darryl L. Wyland, Falls Church, Va. (Anderson, Wyland, Yost & McMurtrie, on brief), for Psychiatric Institute of Washington D.C., Inc., Psychiatric Institute of America, Professional Associates, and Ralph W. Wadeson, Jr., M.D.

Robert W. Lewis (Arlington, Va., Lewis & Jones, on brief) for Helen Semler.

Before CRAVEN, BUTZNER and RUSSELL, Circuit Judges.

BUTZNER, Circuit Judge:

These appeals arise from a negligence action brought by Helen Semler against Psychiatric Institute of Washington, D.C., Psychiatric Institute of America, Professional Associates of the Psychiatric Institute of Washington, D.C., and Ralph W. Wadeson, Jr., M.D. ¹ Jurisdiction rests on diversity of citizenship. Mrs. Semler seeks recovery for the death of her daughter Natalia, who was killed by John Steven Gilreath, a Virginia probationer who had been a patient at the Institute. The original defendants filed a third party complaint against Paul Folliard, Gilreath's probation officer, seeking indemnification or contribution from him if they should be found liable. We will generally refer to the original defendants and the third party defendant collectively as the appellants. The district court, sitting without a jury, awarded the plaintiff $25,000 against the psychiatrists and required Folliard to contribute one-half of this judgment. We affirm.

I

Gilreath had been indicted in Fairfax County, Virginia, for abducting a young girl in October 1971. Pending his trial, he entered the Institute for psychiatric treatment. His doctor, Ralph W. Wadeson, Jr., M.D., wrote Gilreath's attorney that he thought Gilreath could benefit from continued treatment and that he did not "consider him to be a danger to himself or others as long as he is in a supervised, structured way of life such as furnished here at Psychiatric Institute." In August 1972, after conferring with Doctor Wadeson, Judge William Plummer of the state court sentenced Gilreath on his guilty plea to 20 years' imprisonment but suspended the sentence, conditioned on his continued treatment and confinement at the Institute.

A few months later, upon the doctor's recommendation and the probation officer's request, the state judge allowed Gilreath to visit his family for Thanksgiving and Christmas. Subsequently, again on the recommendation of the doctor, the judge allowed additional passes, and early in 1973 he authorized the probation officer to grant weekend passes at his discretion.

In May 1973, the doctor recommended that Gilreath

". . . be transferred to the status of a Day Care patient whereby he would be coming into the hospital at 8 o'clock each morning and leaving the hospital at 5 o'clock each evening. He would commute to and from the hospital with his parents and would spend weekends at home with his parents. He would be under parental supervision for nights and weekends and he would be under psychiatric supervision during the day while on the unit. This seems like a logical next step in the evolution of this young man's improved ability to function in society."

The probation officer transmitted this recommendation to the state judge, who approved it.

In the meantime, Gilreath became increasingly concerned about the financial burden on his parents for the cost of his treatment at the Institute. He also thought he would benefit if he could begin life anew with relatives in Ohio. In July 1973 the probation officer gave Gilreath a three-day pass to go to Ohio and investigate the possibility of moving there. Gilreath made tentative arrangements to work for his uncle and attend therapy sessions at a nearby hospital. The officer later gave Gilreath a fourteen-day pass so that he could return to Ohio in September to prepare for a transfer of probation to that state. The officer approved each of these trips after discussing them with the doctor, who felt that such a change would help Gilreath. Neither pass was submitted to the state judge for approval. On August 29, the doctor, assuming Gilreath would be accepted for probation in Ohio, wrote the probation officer that Gilreath had been discharged from the Institute.

The Ohio probation authorities, however, rejected Gilreath's application for transfer. He telephoned this news to his probation officer, who instructed him to return to Virginia. On September 19, Gilreath visited his doctor, who told him he should have additional therapy. The doctor did not restore Gilreath to day care status but instead enrolled him in a therapy group that met two nights a week. As an out-patient, Gilreath lived first at home and later alone, working as a bricklayer's helper. He told the probation officer about this arrangement, but the officer did not report it to the judge. In late September the officer was promoted, and a new probation officer was assigned Gilreath about October 1. Gilreath killed the plaintiff's daughter on October 29, 1973.

II

Apparently, no Virginia case deals with a claim similar to Mrs. Semler's, so we must resort to the general principles of the Virginia law of torts. These have been succinctly stated in Trimyer v. Norfolk Tallow Co.,192 Va. 776, 780, 66 S.E.2d 441, 443 (1951), as follows:

"To constitute actionable negligence there must be a duty, a violation thereof, and a consequent injury. An accident which is not reasonably to be foreseen by the exercise of reasonable care and prudence is not sufficient ground for a negligence action."

We will consider each of these elements separately. The first is whether the appellants owed the public, including the decedent, Natalia Semler, any duty. This is a question of law. Chesapeake & Potomac Telephone Co. v. Bullock, 182 Va. 440, 29 S.E.2d 228, 230 (1944).

The judgment convicting Gilreath for abduction suspended his 20-year sentence on the general conditions of probation and the following special condition: "(T)hat he continue to receive treatment at and remain confined in the Psychiatric Institute until released by the Court." Both the doctor and the probation officer argue that this order created no duty on their part to Natalia Semler. They maintain that the purpose of the order was to rehabilitate Gilreath and that their duty extended only to him. Quite properly, we believe, the district judge rejected the appellants' limited interpretation of the order.

As we have noted, the Supreme Court of Virginia cautions that an unforeseeable accident is not actionable. Trimyer v. Norfolk Tallow Co., 192 Va. 776, 780, 66 S.E.2d 441, 443 (1951). Therefore, the nature of the appellants' duty depends in large part on the reasonable foreseeability of harm to the public, including the Semler girl, if Gilreath were released from the Institute in violation of the court's order. In this respect, the concepts of duty and proximate cause are related. See Prosser, Law of Torts 244 (4th ed. 1971).

Confinement of criminals frequently is intended to protect the public as well as to punish and rehabilitate the wrongdoer. But we need not rely on this generality to determine the nature of the duty imposed on Gilreath's custodians by the state court's probation order. The order itself discloses that the state trial judge had a dual purpose in placing Gilreath on probation. The judge's willingness to allow Gilreath to continue his private psychiatric treatment shows concern for his welfare. At the same time, the requirement of confinement until release by the court was to protect the public, particularly young girls, from the foreseeable risk of attack. This is demonstrated by the following facts. The pre-sentence report informed the judge that on three previous occasions Gilreath had molested other young girls. The report also contained information about Gilreath's need for psychiatric treatment, and it specifically mentioned an observation of a physician who had previously treated Gilreath that a "closed psychiatric facility would be best . . . ." It concluded with the probation officer's recommendation for continued treatment at the Institute. On the basis of the report, the judge imposed a lengthy sentence and, before placing Gilreath on probation, informed the doctor of his concern for the public. ²

It is apparent that the decision to release Gilreath was not to be simply a medical judgment based on the state of his mental health. The decision would also entail a judgment by the court as to whether his release would be in the best interest of the community. The special relationship created by the probation order, therefore, imposed a duty on the appellants to protect the public from the reasonably foreseeable risk of harm at Gilreath's hands that the state judge had already recognized.

Section 319 of Restatement (Second) of Torts (1965) is close to the point. It provides:

"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."

The Restatement measures a custodian's duty by the standard of reasonable care. Here, that standard has been delineated by the precise language of the court order. The appellants were to retain custody over Gilreath until he was released from the Institute by order of the court. No lesser measure of...