Sisson v. Seneca Mental Health/Mental Retardation Council, Inc., 19667

• Decision Date: 17 April 1991
• Docket Number: No. 19667,19667
• Citation: 185 W.Va. 33,404 S.E.2d 425
• Court: West Virginia Supreme Court
• Parties: Emogene SISSON, Plaintiff Below, Appellant, v. SENECA MENTAL HEALTH/MENTAL RETARDATION COUNCIL, INC., a Corporation; and Max Malcomb, Individually and as Servant, Agent and Employee of Seneca Mental Health/Mental Retardation Council, Inc., Defendants Below, Appellees.

Page 425

404 S.E.2d 425

185 W.Va. 33

Emogene SISSON, Plaintiff Below, Appellant, v. SENECA MENTAL HEALTH/MENTAL RETARDATION COUNCIL, INC., a

Corporation; and Max Malcomb, Individually and as Servant,

Agent and Employee of Seneca Mental Health/Mental

Retardation Council, Inc., Defendants Below, Appellees.

No. 19667.

Supreme Court of Appeals of

West Virginia.

Submitted March 5, 1991.

Decided April 17, 1991.

Syllabus by the Court

1. "Where an order granting summary judgment to a party completely disposes of any issues of liability as to that party, the absence of language prescribed by Rule 54(b) of the West Virginia Rules of Civil Procedure indicating that 'no just reason for delay' exists and 'directi[ng] ... entry of judgment' will not render the order interlocutory and bar appeal provided that this Court can determine from the order that the trial court's ruling approximates a final order in its nature and effect." Syllabus Point 2, Durm v. Heck's, Inc., 184 W. Va. 562, 401 S.E.2d 908 (1991).

2. "A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law." Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W. Va. 160, 133 S.E.2d 770 (1963).

3. "The basis of ... malpractice is the trust relationship that arises from ... counseling services which are designed to improve the mental and emotional well being of the patient. In such a situation, it is recognized that the patient may become emotionally dependent on the counselor and be easily manipulated by an unscrupulous counselor." Syllabus Point 1, in part, Weaver v. Union Carbide Corp., 180 W.Va. 556, 378 S.E.2d 105 (1989).

4. Whether a trust relationship exists in therapist counseling depends on two primary factors, together with any other relevant circumstances. First, the therapy must have been conducted over a sufficient period of time to establish a trust relationship. Second, there must be some reasonable semblance of actual therapy sessions.

Kenneth J. Barnett, Donald K. Bischoff, Summersville, for appellant.

Stephen R. Crislip, Gale R. Lea, Jackson & Kelly, Charleston, for appellee Seneca Mental Health/Mental Retardation Council, Inc.

Timothy R. Ruckman, Callaghan & Ruckman, Summersville, for appellee Max Malcomb.

MILLER, Chief Justice.

Emogene Sisson, the plaintiff below, appeals an order of the Circuit Court of Nicholas County, dated August 31, 1989, granting summary judgment for Seneca Mental Health/Mental Retardation Council, Inc. (Seneca). The issue on appeal is whether Max Malcomb, an employee of Seneca, had a patient-counselor relationship with Ms. Sisson when he engaged in sexual relations with her. We find that this professional relationship did not exist; therefore, we affirm the judgment of the circuit court.

I.

During August and September, 1983, Ms. Sisson was hospitalized at St. Joseph's Hospital in Buckhannon, West Virginia for severe depression. After being released from St. Joseph's, Ms. Sisson was referred by her treating physicians to Seneca for out-patient mental health counseling and treatment. Thereafter, Ms. Sisson saw Dale Cottle, a mental health counselor at Seneca, two to three times a week.

In April, 1984, Mr. Cottle informed Ms. Sisson that he was going on vacation, and that if she needed to talk to a counselor while he was gone, she should call the emergency room at Summersville Memorial Hospital (the Hospital). In turn, the Hospital would direct the counselor on-call at Seneca to contact her. On April 21, 1984, while Mr. Cottle was on vacation, Ms. Sisson called the Hospital to request the assistance of a counselor. Ms. Sisson was involved in a pending divorce action, and she called the Hospital because her son had just informed her that he wanted to live with his father after the divorce was final.

Max Malcomb was on-call that night for Seneca. Mr. Malcomb had been hired on February 16, 1983, as a Substance Abuse Worker II. His responsibilities included providing out-patient services and case management for chronic alcoholics. Moreover, Mr. Malcomb, like all counselors at Seneca, was required to be on-call one week every two months in order to handle emergency situations that arise after business hours.

Mr. Malcomb asked Ms. Sisson to come down to the hospital and talk. After she arrived, Mr. Malcomb and Ms. Sisson discussed her problems for about one hour. During this conversation, Ms. Sisson learned that Mr. Malcomb was related to David Malcomb, a man she had traveled with to Michigan twenty years earlier. After making this connection, Mr. Malcomb asked Ms. Sisson to join him for a cup of coffee. The two of them left the premises, bought some coffee, and drank it while sitting in Ms. Sisson's car. Ms. Sisson alleges that Mr. Malcomb kissed her on the cheek at the end of the evening.

Shortly after this incident, Dale Cottle returned from vacation, and Ms. Sisson resumed her counseling sessions with him. She apparently never mentioned to Mr. Cottle her encounter with Mr. Malcomb.

Subsequent to their initial meeting, Mr. Malcomb and Ms. Sisson began meeting regularly at various locations. A typical evening consisted of driving around in Mr. Malcomb's truck, drinking alcoholic beverages, and engaging in sexual intercourse. These encounters continued until June, 1984, when Ms. Sisson's brother learned about her relationship with Mr. Malcomb and forced her to go to Seneca and complain. Seneca investigated the allegations immediately and fired Mr. Malcomb that very day. Nonetheless, the pair's relationship continued until March, 1985, when Ms. Sisson decided to end it.

On June 14, 1985, Ms. Sisson filed suit against Seneca and Mr. Malcomb, both individually and as an agent of Seneca. The complaint alleged two causes of action: (1) malpractice and (2) negligent hiring and supervision. On August 31, 1989, the circuit court granted summary judgment for Seneca on the grounds that Mr. Malcomb was acting outside of the scope of his employment and that there was no evidence presented that Seneca had been negligent in either hiring or supervising Mr. Malcomb.

II.

Initially, Seneca points out that the order dismissing it from the case did not expressly state that there was no just reason for delay and did not direct entry of a final order, ¹ as required by Rule 54(b) of the West Virginia Rules of Civil Procedure. ² Consequently, Seneca argues that the order is not a final or appealable order and that these proceedings should be dismissed.

We recently rejected this argument in Durm v. Heck's, Inc., 184 W.Va. 562, 401 S.E.2d 908 (1991). In Durm, the plaintiff had fallen on a sidewalk outside of a Foodland store that was located in a shopping center owned by Heck's. The plaintiff sued both Foodland and Heck's. Foodland filed a motion for summary judgment on the ground that under the terms of their lease, Heck's had a mandatory obligation to maintain and repair the common areas. The circuit court granted summary judgment against the plaintiff.

On appeal, Heck's argued that because the circuit court's order did not state "that there was no just reason for delay" and failed to order entry of a judgment, the order was interlocutory. We disagreed and pointed out that we have not construed Rule 54(b) as strictly as have the federal courts. We explained the difference in our application of Rule 54(b) in Parsons v. Consolidated Gas Supply Corp., 163 W.Va. 464, 469, 256 S.E.2d 758, 761 (1979):

"The right of appeal to a federal circuit court is absolute; under our system, it is not. The consequence of this difference is that we can be less restrictive in interpreting the finality of an order, since upon preliminary review of the application for appeal we may reject it as being without merit."

When a party is dismissed from a case by way of a summary judgment, there is a certain finality to that party's liability in the case. Accordingly, we held in Syllabus Point 2 of Durm:

"Where an order granting summary judgment to a party completely disposes of any issues of liability as to that party, the absence of language prescribed by Rule 54(b) of the West Virginia Rules of Civil Procedure indicating that 'no just reason for delay' exists and 'directi[ng] ... entry of judgment' will not render the order interlocutory and bar appeal provided that this Court can determine from the order that the trial court's ruling approximates a final order in its nature and effect."

We also explained in Durm that an order is final "if the order resolves the litigation as to a claim or a party." 184 W.Va. at 566, 401 S.E.2d at 912. (Citations omitted).

An examination of the circuit court's August 31, 1989 order reveals that it fully absolved Seneca of any liability. Indeed, the order stated "the complaint of plaintiff against defendant Seneca Mental Health/Mental Retardation Council, Inc., ... [is] hereby, dismissed." In light of the foregoing, we find that the August 31, 1989 order is final and is subject to appeal.

III.

The plaintiff argues that summary judgment was improper. Our traditional standard for granting summary judgment is set out in Syllabus Point 3 of Aetna Surety & Casualty Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963):

"A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law."

The facts recited in Part I, supra, are substantially uncontroverted. The crucial issue is whether they establish a cause of action for malpractice.

Our leading case recognizing a cause of action for malpractice where a counselor engages in sexual relations with a patient is Weaver v. Union Carbide Corp., 180 W.Va. 556, 378 S.E.2d 105 (1989). In Weaver, an employee went to a...