Tamsen v. Weber, 1

CourtCourt of Appeals of Arizona
Citation166 Ariz. 364,802 P.2d 1063
Docket NumberNo. 1,CA-CV,1
PartiesMargaret TAMSEN and Dale Tamsen, husband and wife, Plaintiffs-Appellants, v. Dr. George WEBER, Defendant-Appellee. 88-508.
Decision Date11 September 1990


Plaintiffs have appealed from a summary judgment and from the superior court's subsequent denial of their motion for new trial. The central issue presented is whether the defendant psychiatrist, Dr. George Weber, owed a duty to protect the plaintiff, Margaret Tamsen, from the violent acts of a person committed to the Arizona State Hospital, Kevin Trahan, who was in the care and custody of Dr. Weber. Because we hold that such a duty exists, we reverse the summary judgment, and remand for trial on whether Dr. Weber's conduct breached that duty and whether his breach caused harm to the plaintiffs.

We address the three issues presented in this appeal as follows 1. If Dr. Weber knew of Trahan's dangerous propensities, did he have a duty to control Trahan so that he would not harm others?

2. Did the superior court properly grant summary judgment in the face of evidence of Trahan's dangerousness?

3. After the Tamsens discovered Trahan's medical records from the Arizona State Hospital, did the superior court abuse its discretion by denying the Tamsens' motion for a new trial based on newly discovered evidence?


On March 24, 1984, Kevin Trahan and another patient escaped from the Arizona State Hospital. The next day, they abducted a passer-by, appellant Margaret Tamsen, from the parking lot of another hospital. The escapees blindfolded Mrs. Tamsen, forced her at knife point to enter a vehicle, and drove her to south Phoenix. There, Trahan and the other patient severely beat Tamsen, held her head under water in an irrigation ditch, and left her for dead. Tamsen survived and made her way to a nearby house where she summoned help. The escapees were subsequently arrested in Tucson in Tamsen's car.

Trahan had been involuntarily committed to the Arizona State Hospital as a danger to himself. After being arrested in Flagstaff on theft charges, Trahan had attempted suicide twice while in jail and consequently was transferred to the Arizona State Hospital. While a patient there, he again attempted suicide. Trahan also was involved in an argument at the hospital in the course of which he kicked a staff member in the hand and wrist. Despite Trahan's history, Dr. Weber granted unsupervised grounds privileges to Trahan. It was during an unsupervised period on the hospital grounds that Trahan escaped.

Tamsen and her husband filed a suit in superior court naming various defendants, including appellee Dr. Weber. The Tamsens claim that Dr. Weber was or should have been aware of Trahan's violent tendencies, and therefore that Dr. Weber should have known that Trahan endangered others if he were not properly controlled.

Dr. Weber moved for summary judgment, arguing that he did not owe Tamsen any duty of care arising out of his psychiatrist-patient relationship with Trahan. Dr. Weber argued that because Trahan had made no specific threats directed towards Tamsen, she was not a foreseeable, readily identifiable victim.

The superior court denied Dr. Weber's motion. It found that Dr. Weber did have a duty to exercise reasonable care to control Trahan, and whether Dr. Weber had exercised a reasonable degree of control over Trahan under the circumstances was an unresolved issue of material fact.

Dr. Weber then filed a motion for reconsideration. The superior court denied the motion because it failed to set forth additional facts or new law which would warrant reconsideration of its ruling.

Dr. Weber filed a second motion for summary judgment on the same day he filed his motion for reconsideration. The superior court granted this motion for summary judgment. Dr. Weber acknowledged for the sake of arguing this motion that he should have exercised reasonable care to control Trahan if he knew or should have known that Trahan was likely to cause bodily harm to others. But Dr. Weber argued that there were no facts from which the trier of fact could infer that he knew or should have known of Trahan's dangerousness. Because the Tamsens presented no controverting affidavits, the court found that no genuine issue of material fact existed and granted summary judgment.

After entry of a written judgment against them, the Tamsens timely moved for a new trial based on recently obtained records relating to Trahan's hospitalization at the Arizona State Hospital. They argued that these records clearly revealed Trahan's tendency to commit violent acts. The Tamsens contended that the records were newly discovered evidence entitling them to a new trial under Rule 59(a)(4), Arizona Rules of Civil Procedure. 1 The superior court denied the Tamsens' motion for a new trial without explanation. This appeal followed.


We first consider whether Dr. Weber had a duty to control Trahan so that he would not inflict harm on others. Unless such a duty exists, any newly discovered evidence in support of the Tamsens' motion for a new trial would be irrelevant.

To recover in a negligence case, the plaintiff must show that a legal duty exists, that the defendant breached that duty, and that an injury resulted from that breach. Ontiveros v. Borak, 136 Ariz. 500, 504, 667 P.2d 200, 204 (1983). The question whether the defendant owes a duty to a plaintiff is one of law to be decided by the court. Markowitz v. Arizona Parks Bd., 146 Ariz. 352, 354, 706 P.2d 364, 366 (1985); Beach v. City of Phoenix, 136 Ariz. 601, 604, 667 P.2d 1316, 1319 (1983).

Generally, the common law imposes no duty to control the actions of another. Cooke v. Berlin, 153 Ariz. 220, 735 P.2d 830 (App.1987). However, exceptions to the general rule do exist. The Restatement (Second) of Torts § 315 (1965) sets forth the exception which applies to this case.

There is no duty to control the conduct of a third person as to prevent him from causing physical harm to another unless

(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct ...

Comment c of § 315 states that §§ 316-319 set forth the circumstances under which an actor is required to control a third person's conduct. Section 319 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.

Arizona has previously followed the rule of § 319. In Grimm v. Arizona Bd. of Pardons & Paroles, 115 Ariz. 260, 564 P.2d 1227 (1977), the supreme court applied § 319 and held that the Arizona Board of Pardons and Paroles owes a duty to individual members of the public when deciding whether to release a dangerous prisoner. The court reasoned that the Board's liability arose from the negligent performance of the duty because of its grave risk of harm in such situations. 115 Ariz. at 267, 564 P.2d at 1234.

No reported Arizona decision has applied Restatement (Second) of Torts § 319 to a psychiatrist's duty to control an involuntarily committed patient with known dangerous propensities. However, Arizona courts follow the Restatement (Second) of Torts in the absence of Arizona authority to the contrary. Jesik v. Maricopa County Community College Dist., 125 Ariz. 543, 611 P.2d 547 (1980); Aztlan Lodge No. 1, Free and Accepted Masons of Prescott v. Ruffner, 155 Ariz. 163, 745 P.2d 611 (App.1987); Koepke v. Carter Hawley Hale Stores, Inc., 140 Ariz. 420, 682 P.2d 425 (App.1984). The potential for grave physical harm mandates that a psychiatrist who undertakes to care for an involuntarily committed patient with known or reasonably discernable dangerous propensities must exercise due care or be held liable for the consequences.

Dr. Weber was, in the words of the Restatement, "in charge of" Trahan's freedom of movement at the Arizona State Hospital. Indeed, Dr. Weber had the discretion to, and did, grant Trahan unsupervised grounds privileges.

Dr. Weber argues that Hamman v. County of Maricopa, 161 Ariz. 58, 775 P.2d 1122 (1989), holds that a psychiatrist's duty extends only to victims who are "reasonably foreseeable," i.e., those whom the psychiatrist can reasonably predict might be attacked by an uncontrolled patient. Dr. Weber acknowledges that a specific threat to the victim is not required for foreseeability, and thus is not required for a duty to exist. However, Dr. Weber argues that the victim must be in a reasonably foreseeable "zone of danger." According to Dr. Weber, because Trahan randomly selected Margaret Tamsen as his victim, she cannot be a foreseeable victim.

The decision in Hamman does not control the outcome of this case. Hamman did not rely on Restatement § 319 and did not involve a psychiatrist "in charge of" a committed patient. Hamman instead involved a psychiatrist treating an outpatient who had freedom of movement. The scope of the duty imposed in such a case necessarily differs from that which applies to a psychiatrist whose patient has been involuntarily committed. An involuntarily committed patient is within the physician's physical control. In contrast, a psychiatrist cannot monitor and control an outpatient's interaction with the public. A psychiatrist's duty to protect the public from an outpatient is therefore limited to identifiable potential victims whom he can warn.

A psychiatrist can control the involuntarily committed patient, however, and can by the prudent exercise of such control protect the public from the...

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