No Duty to Warn, but Common Law Duty of Care

Facts of the Case

A therapist at the Mount Logan Clinic called police to assist her with a patient whom she was treating in her office. The patient was suicidal and she needed help transporting him to a secure psychiatric unit. The therapist was aware that the patient “had a history of threatening violent behavior and had sometimes waved a gun around at home, threatening himself and his family. She also knew that the patient sometimes kept a gun in his truck” (Robinson, p 334). During the session, with the therapist's knowledge, the patient had gone out to his truck. When the therapist asked him if he had a weapon, the patient replied, “Maybe I do, maybe I don't.” When police were called, the dispatcher asked the therapist if the patient had “any weapons or anything like that?” The therapist replied, “No.” Two officers, including the plaintiff, Officer Mark Robinson, went to the therapist's office. It was then that the therapist, for the first time, told the police officers that her patient might have a weapon. When the police officers attempted to take the patient to the secure unit, a struggle ensued. During the struggle, a handgun in the patient's pocket went off, and Officer Robinson was shot in the foot.

The injured officer filed a complaint against the therapist and the clinic, alleging negligently inflicted personal injury. The clinic filed a motion to dismiss, under Utah Code Ann. § 78-14a-102(1), arguing that it could not be held liable because the patient made no threat toward Officer Robinson and, therefore, it had no duty to Officer Robinson. Utah code provides that “A therapist has no duty to warn or take precautions to provide protection from any violent behavior of his client or patient, except when that client or patient communicated to the therapist an actual threat of physical violence against a clearly identified or reasonably identifiable victim.”

Ruling and Reasoning

The Supreme Court of Utah reversed the district court decision that the state code removed all common law statutory duties of the therapist and clinic to Officer Robinson and remanded to the lower court for further proceedings.

The Supreme Court reasoning began with an analysis of Utah Code Ann. § 78-14a-102(1). The exception to the rule that the therapist has no duty to warn is triggered when the patient communicates to the therapist “an actual threat of physical violence against a clearly identified or reasonably identifiable victim.”

In this case, the patient did not make an actual threat against Officer Robinson, and the therapist, according to statute, did not have a duty to warn or protect him. However, when the therapist responded to the police dispatcher's question of whether the patient had “any weapons or anything like that,” she had a common law duty to exercise reasonable care.

Discussion

What makes the Robinson case interesting is the question of whether the therapist owed a common law duty to the police officer to act non-negligently? The therapist's patient made no actual threat against an identifiable victim and, under Utah law, no duty to warn was triggered. There was, however, a common law duty that arose from the therapist's affirmative act for which there was a duty to exercise reasonable care.

In 1768, Blackstone, in his Commentaries on the Laws of England, considered common law duties: “For wherever the common law gives a right or prohibits an injury, it also gives a remedy by action; and therefore, wherever a new injury is done, a new method of remedy must be pursued” [Blackstone W: Commentaries on the Laws of England, Book the Third, Birmingham, AL: The Legal Classics Library, 1983, p 123].

The duty of a therapist to warn or protect an identifiable target of the therapist's patient's intention to do physical harm to an individual is not a cause of action that Blackstone considered. It is one of those novel causes of action covered by the general principle that: …[E]very one who undertakes any office, employment, tru∫t, or duty, contracts with tho∫e who employ or entru∫t him, to perform it with integrity, diligence, and ∫kill. And, if by his want of either of tho∫e qualities any injury accrues to individuals, they have therefore their remedy in damages by a special action on the ca∫e [Commentaries on the Laws of England, p 163].

In 1932, Lord Akin stated that the general principle that creates a duty of care is derived of: …the rule that you love your neighbor becomes in law, you must not injure your neighbor …. [W]ho then, in law is my neighbor? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question” [Donoghue v. Stevenson, (1932) AC 562].

In 1996, in Nelson by & ex rel. Stuckman v. Salt Lake City, 919 P.2d 568 (Utah 1996), the Utah Supreme Court, echoing the common law principle, held that, “Where one undertakes an act which he has no duty to perform and another reasonably relies upon that undertaking, the act must generally be performed with ordinary or reasonable care” (p 573).

Relying on Nelson, the court concluded that the Utah statute did not require the therapist to protect Officer Robinson; however, when the therapist undertook the affirmative act of responding to the dispatcher's question, the therapist had a common law duty to do so non-negligently.