DENNEY, District Judge.
This matter comes before the Court upon the motion of the United States to dismiss or for summary judgment [Filing # 102].
In September of 1977, Ulysses L. Cribbs, Jr., purchased a shotgun from a Sears store located in Bellevue, Nebraska. Prior to purchasing this gun, Mr. Cribbs had been committed to a mental institution, and had been receiving psychiatric care from the Veterans Administration [V.A.]. Shortly after purchasing the gun, Mr. Cribbs resumed participation in psychiatric day care treatment at the V.A. This treatment lasted from September 23, 1977, until October 17, 1977, when Mr. Cribbs removed himself from this treatment, against the advice of his doctors. On November 26, 1977, Mr. Cribbs entered an Omaha night club and fired a shotgun into a crowded dining room, killing Dennis F. Lipari and seriously wounding his wife, Ruth Ann Lipari.
The instant case is a part of the litigation arising out of this shooting incident. This action was originally brought against Sears, Roebuck & Company by Ruth Ann Lipari and the Bank of Elkhorn, co-administrators of Dennis F. Lipari's estate, to recover damages for the wrongful death of Lipari. Ruth Ann Lipari also seeks to recover damages for her own personal injuries. The plaintiffs allege that Lipari's death and Mrs. Lipari's personal injuries were caused by the negligence of Sears in selling a gun to one whom Sears knew or should have known had been adjudged mentally defective or had been committed to a mental institution.
Sears has filed a third-party complaint against the United States. This third-party complaint is brought under the Federal Tort Claims Act. It alleges that the United States may be liable to Sears under the doctrines of contribution and indemnity for any damages which Sears may be required to pay the plaintiffs. Specifically, Sears alleges that the V.A.'s treatment of Mr. Cribbs was negligent because the V.A. knew or should have known that Mr. Cribbs was dangerous to himself and others, and because the V.A., despite this knowledge, failed "to take those steps, and to initiate those measures and procedures customarily taken or initiated for the care and treatment of mentally ill and dangerous persons by mental health professionals practicing in the community." This negligence on the part of the V.A. is alleged to be the proximate cause of Dennis Lipari's death and of Ruth Lipari's injuries.
Subsequent to the filing of Sears' third-party complaint, the plaintiffs filed a second complaint herein naming the United States as a defendant. This complaint is brought under the Federal Tort Claims Act and contains essentially the same allegations as the third-party complaint. The plaintiffs, however, allege that the V.A. was negligent in failing to detain Mr. Cribbs or in failing to initiate civil commitment proceedings against him.
In response to these complaints, the United States has filed a motion to dismiss or, in the alternative, for summary judgment. Since this motion involves primarily legal questions addressed to the sufficiency of the complaints' allegations, the Court will treat the motion of the United States as strictly a motion to dismiss.
Essentially, the motion of the United States raises three issues: (1) whether the complaints state a cause of action against the United States for the V.A.'s negligent treatment of Mr. Cribbs; (2) whether the parties' claims against the United States are barred by the discretionary function exception to the Federal Tort Claims Act; and (3) whether the third-party complaint properly alleges a claim for indemnity or contribution under Nebraska law. Each party has submitted extensive written argument addressing these issues. After careful consideration of these arguments, the Court is of the opinion that the United States' motion to dismiss must be denied.
Failure to State Cause of Action
Under the Federal Tort Claims Act, the United States is liable for the torts of its employees only to the extent that a private person would be liable to the claimant under the law of the place where the tortious acts or omissions occurred. See 28 U.S.C. §§ 1346(b), 2674. The incidents involved in the instant action all occurred in Nebraska. This Court must therefore determine whether Nebraska law would impose a duty on a psychotherapist to take reasonable precautions to protect potential victims of his patient, when the psychotherapist knows or should know that his patient presents a danger to others.
Unfortunately, the Nebraska Supreme Court has never addressed the issue of a therapist's duty to third persons. It therefore becomes the duty of this Court to ascertain what rule of law the Nebraska Supreme Court would adopt in this situation. In making this determination, the Court will consider any Nebraska authority dealing with issues analogous to those raised in this case. The Court will also consider the case law of other jurisdictions, to the extent that it suggests the rule of law which the Nebraska Supreme Court would be likely to adopt. See Hoesing v. Sears, Roebuck & Co., 484 F.Supp. 478, 478-79 (D.Neb.1980).
An essential element in any negligence action is the existence of a legal duty which the defendant owes to the plaintiff. Daniels v. Andersen, 195 Neb. 95, 98, 237 N.W.2d 397, 400 (1975). Under the common law, a person had no duty to prevent a third party from causing physical injury to another. A number of courts, however, have recognized an exception to this general rule. Under this exception, a person has a duty to control the conduct of a third person and thereby to prevent physical harm to another if
Restatement (Second) of Torts § 315 (1965). See, e. g., Seibel v. City & County of Honolulu, Haw., 602 P.2d 532, 536 (1979). Since there is clearly no relationship between the V.A. and the persons injured by Mr. Cribbs, the Court will limit its analysis to a discussion of the relationship between Mr. Cribbs and his doctors at the V.A.
Under the Restatement approach, the psychotherapist-patient relationship has been found to be a sufficient basis for imposing
In Tarasoff v. Regents of the University of California, 17 Cal.3d 425, 551 P.2d 334, 131 Cal.Rptr. 14 (1976), the plaintiffs' complaint alleged that the defendant therapists had a duty to warn their daughter of the danger posed to her by one of the therapist's patients.
In support of recognition of this duty, the court noted that in other settings, courts had found doctors and hospitals responsible for the behavior of their patients. Among the cases cited by the Tarasoff court were decisions in which the courts had recognized that a mental hospital may be liable for the negligent release of dangerous patients. Id. at 436 n.7, 551 P.2d at 343 n.7, 344, 131 Cal.Rptr. at 23 n.7, and in which the courts had held that a doctor was liable for his negligence to those contracting a contagious disease from his patient. Id. at 436, 551 P.2d at 344, 131 Cal.Rptr. at 24.
In McIntosh v. Milano, 168 N.J.Super. 466, 403 A.2d 500 (1979), the New Jersey Superior Court was faced with the issue of whether a psychiatrist had a duty to warn a potential victim of one of his patients of the danger posed by that patient.
Based on these previously recognized duties,
The Tarasoff and McIntosh decisions provide a well-reasoned framework for analyzing the issue of whether a psychotherapist owes an affirmative duty to persons other than his patient. This Court, however, must determine whether the Nebraska Supreme Court would adopt the Tarasoff-McIntosh analysis.
The basis for the Tarasoff-McIntosh rule imposing an affirmative duty on psychotherapists was the courts' adoption of the special relationship analysis of the Restatement (Second) of Torts § 315. This Court is not aware of any Nebraska case expressly adopting the rule found in the Restatement § 315. However, there are two Nebraska cases which implicitly recognize the special relationship analysis. See Daniels v. Andersen, supra, 195 Neb. at 98, 237 N.W.2d at 400, Rose v. Gisi, 139 Neb. 593, 597-598, 298 N.W. 333, 336 (1941).
Having determined that the special relationship rule is applicable to the instant case, the Court must next consider the issue of whether under Nebraska law the relationship between a psychotherapist and his patient is sufficient to justify imposition of an affirmative duty on the therapist to control the conduct of his patients. Although the Nebraska Supreme Court has never addressed this issue, this Court is of the opinion that the Nebraska court would find that the therapist-patient relationship gives rise to an affirmative duty for the benefit of third persons.
The existence of this duty is suggested by a passage from a Nebraska case involving the physician-patient privilege. In Simonsen v. Swenson, 104 Neb. 224, 177 N.W. 831 (1920), the court held that a doctor was not liable to his patient for disclosing the patient's confidence, when the disclosure was necessary to prevent the spread of a contagious disease. This privilege was based on the fact that "[t]he doctor's duty does not necessarily end with the patient, for on the other hand, the malady of his patient may be such that a duty may be owing to the public and, in some cases, to other particular individuals." Simonsen v. Swenson, supra, 104 Neb. at 227, 177 N.W. at 832. From this passage, it may be inferred that under Nebraska law the physician-patient relationship imposes affirmative duties on the physician for the benefit of persons other than the patient. This inference is buttressed by the fact that other jurisdictions have found that a physician owes a duty to persons who may be harmed by their patient's condition. Freese v. Lemmon, 210 N.W.2d 576 (Iowa 1973); Kaiser v. Suburban Transportation System, 65 Wn.2d 461, 398 P.2d 14 (1965), modified 401 P.2d 350 (1965). See Seibel v. City & County of Honolulu, supra, 602 P.2d at 538.
Despite this precedent imposing affirmative duties on physicians generally, the United States argues that various policy considerations counsel against the imposition of liability on psychotherapists. The primary thrust of the argument of the United States is that a therapist should not be held liable for the violent outbursts of his patients, because a therapist cannot accurately predict which patients pose a danger to other persons. To support this contention, the United States has submitted to the Court various studies which purport to prove that dangerousness cannot be predicted. The Court, however, is not persuaded that the inherent difficulties in predicting dangerousness justify denying the injured party relief regardless of the circumstances.
The argument of the United States ignores the fact that psychiatrists and mental hospitals have been held liable for failing to predict the dangerous propensities of their patients. See Hicks v. United States, 511 F.2d 407, 415-17 (D.C.Cir.1975); Eanes v. United States, 407 F.2d 823 (4th Cir. 1969); White v. United States, 317 F.2d 13, 17 (4th Cir. 1963); Johnson v. United States, 409 F.Supp. 1283, 1292-94 (M.D.Fla.1976), rev'd on other grounds 576 F.2d 606 (5th Cir. 1978); Greenberg v. Barbour, 322 F.Supp. 745 (E.D.Pa.1971); Merchants National Bank & Trust Co. v. United States, 272 F.Supp. 409, 417-19 (D.N.D.1967); Baker v. United States, 226 F.Supp. 129, 132-35 (S.D.Ia.1964), aff'd 343 F.2d 222 (8th Cir. 1965). Moreover, the Nebraska Supreme Court has imposed on hospitals a duty to guard against their patients' dangerous mental conditions when the condition is discoverable by the exercise of reasonable care. Foley v. Bishop Clarkson Memorial Hospital, 185 Neb. 89, 94-95, 173 N.W.2d 881, 884-85 (1970). See Skar v. City of Lincoln, Neb., 599 F.2d 253, 258 n.5 (8th Cir. 1979). These cases from Nebraska and other jurisdictions clearly show that the difficulty in predicting dangerousness has not caused the Nebraska Supreme Court or other courts to deny the existence of a cause of action for the negligence of the doctor or hospital.
See Tarasoff v. The Regents of the University of California, supra, 17 Cal.3d at 436-37, 551 P.2d at 344-45, 131 Cal.Rptr. at 24-25; McIntosh v. Milano, 168 N.J.Super. at 481-83, 403 A.2d at 507-08. Under this standard, a therapist who uses the proper psychiatric procedures is not negligent even if his diagnosis may have been incorrect. Given this protection, the Court is of the opinion that the difficulty in predicting dangerousness does not justify denying recovery in all cases.
A second policy argument raised by the United States involves the goal of placing mental patients in the least restrictive environment. The United States contends that imposing liability on a psychotherapist would conflict with this goal because therapists would attempt to protect themselves from liability by placing their patients in a restrictive environment. This argument misinterprets the nature of the duty imposed upon the therapist. The recognition of this duty does not make the psychotherapist liable for any harm caused by his patient, but rather makes him liable only when his negligent treatment of the patient caused the injury in question.
See Eanes v. United States, supra, 407 F.2d at 824. Thus, despite the defendant's protests to the contrary, a psychotherapist is not subject to liability for placing his patient in a less restrictive environment, so long as he uses due care in assessing the risks of such a placement. This duty is no greater than the duty already owing to the patient.
The United States' final challenge to recognition of a therapist's duty to protect third persons concerns the nature of the protection owed. The United States contends that assuming a therapist owes a duty to third persons, this duty is limited to warning potential victims of his patient's dangerous propensities. This contention is based on the holding in Tarasoff.
Although the Tarasoff decision concerned only the issue of a therapist's duty to warn, the language of the case makes clear that the nature of the precautions which must be taken depends on the circumstances.
The Court is of the opinion that the approach suggested by this passage from Tarasoff is appropriate. It is not unfair to require the psychotherapist to take those precautions which would be taken by a reasonable therapist under similar circumstances. Moreover, this Court refuses to rule as a matter of law that a reasonable therapist would never be required to take precautions other than warnings, or that there is never a duty to attempt to detain a patient. These issues can only be determined after the parties have had an opportunity to prove what precautions a reasonable psychotherapist would take under the circumstances in issue here.
To summarize, this Court is of the opinion that under Nebraska law the relationship between a psychotherapist and his patient gives rise to an affirmative duty for the benefit of third persons. This duty requires that the therapist initiate whatever precautions are reasonably necessary to protect potential victims of his patient. This duty arises only when, in accordance with the standards of his profession, the therapist knows or should know that his patient's dangerous propensities present an unreasonable risk of harm to others.
The Court's recognition of this duty does not resolve all the issues raised by the defendant's motion. Under Nebraska law, a
Although the Tarasoff decision did not emphasize the identifiability of the victim in its analysis,
The Court is of the opinion that the Nebraska Supreme Court would adopt this latter approach and limit the therapist's liability to those persons foreseeably endangered by the V.A.'s negligent conduct.
Discretionary Function Exception
The discretionary function exception to the Federal Tort Claims Act is designed to bar tort litigation challenging governmental decisions which are founded on a balancing of competing policy considerations. Although a lawsuit may challenge a government official's exercise of judgment, this fact alone does not necessarily mean that the suit will be barred by the discretionary function exception. Rather, a court must consider a variety of factors to determine whether the judgment in issue called for the weighing of policy considerations. Griffin v. United States, 500 F.2d 1059, 1063-64 (3rd Cir. 1974).
The gravamen of the complaints of the plaintiffs and the third-party plaintiff is that the V.A.'s employees were negligent in failing to detain Cribbs, a patient whom they should have known posed a danger to others. The decision not to detain Cribbs was presumably based on a psychotherapist's professional judgment that Cribbs' condition did not necessitate detention. This decision is not different in kind from the decision which any therapist in private practice would have had to make in similar circumstances. Thus, the judgment of the United States' therapist can be readily assessed by the Court's use of the tort standard applicable to professional negligence. In applying the standard, the Court will not be reviewing the reasonableness of the V.A.'s policies, but will be only assessing the reasonableness of the therapist's evaluation of Cribbs. It is clear that "[t]he fact that judgments of government officials occur in areas requiring professional expert evaluation does not necessarily remove those judgments from the examination of courts by classifying them as discretionary functions under the act." Hendry v. United States, 418 F.2d 774, 783 (2d Cir. 1969). Finally, it should also be noted that the complexity of the problem facing the decision maker does not affect the Court's determination of whether the decision involves a discretionary function. All of these factors tend to suggest that the therapist's decision not to detain Cribbs did not involve a balancing of policy considerations, and thus was not a discretionary function. See Griffin v. United States, supra, 500 F.2d at 1063-67; Hendry v. United States, supra, 418 F.2d at 782-83.
Another factor weighing against application of the discretionary function exception is that the parties' complaints do not challenge the V.A.'s rules or policies, but rather challenge the V.A.'s negligent implementation of its rules. Although the development of an agency's rules and regulations is a discretionary function, it is generally recognized that the implementation of these rules does not involve policy judgments within the discretionary function exception. This rule has been repeatedly applied to decisions made by mental health professionals. See White v. United States, supra, 317 F.2d at 17-18 (4th Cir. 1963); Fair v. United States, 234 F.2d 288, 294
In the instant case, the parties' complaints do not challenge the V.A.'s policy on the detention of potentially dangerous patients. Rather, this case involves a claim that the implementation of this policy was negligently executed. Since the complaints challenge the implementation of the V.A.'s rules, it would appear that the decision concerning Cribbs' detention would not be a discretionary function.
The preceding discussion demonstrates that the allegations in the parties' complaints do not fall within the discretionary function exception to the Federal Tort Claims Act. The complaints do not challenge a governmental decision which involved the consideration of public policy. The parties' complaints, therefore, shall not be dismissed for alleging a cause of action barred by the discretionary function exception.
Sears' Claim for Indemnity
Under Nebraska law, indemnity is available only when the defendant's liability to the plaintiff is based on constructive or technical fault, as opposed to actual wrongdoing. Danny's Construction Co. v. Havens Steel Co., 437 F.Supp. 91, 93 (D.Neb.1977). Sears contends that its liability to the plaintiff, if any, would be based on a technical fault, violation of statute, and would not be based on any actual wrongdoing on its part. Sears thus concludes it is entitled to indemnity. The Court disagrees.
The plaintiffs' complaint alleges that Sears was negligent in selling a gun to Ulysses Cribbs. Proof that Sears violated the federal Gun Control Act does not establish negligence per se. A violation of a statute is merely evidence of negligence which is considered by the trier of fact with all the other evidence. See Florida v. Farlee, 201 Neb. 39, 266 N.W.2d 204 (1978); Hurlbut v. Landgren, 200 Neb. 413, 264 N.W.2d 174 (1978). Thus, in order for Sears to be liable to the plaintiffs, the jury must find, based on all the evidence, that Sears was in fact negligent.
In a situation such as this, indemnity is not appropriate. Sears is either blameless, in which case no indemnity is required, or it is liable for affirmative misconduct, in which case it must bear at least part of the burden for the plaintiffs' losses.
Sears' Claim for Contribution
Nebraska recognizes the right of contribution among tortfeasors who act in concert or whose negligent acts combine to concurrently cause the same injury. The United States contends that Sears is not entitled to contribution because the negligent acts of Sears and the United States were not the concurrent cause of the Liparis' injuries. This contention is without merit.
The factual setting of the instant case is indistinguishable from Reese v. AMF-Whitely, 420 F.Supp. 985 (D.Neb.1976). In Reese, the plaintiff's son was injured by gym equipment manufactured and designed by the defendant. The plaintiff alleged that the defendant negligently manufactured the equipment. The defendant sought to implead Keith Blackwell, claiming a right to contribution. Blackwell allegedly was negligent in installing the equipment on which the plaintiff's son was injured. The Court held that the negligent acts of Blackwell and the defendant, though separate in time, were the concurrent cause of the same injury to the son. Thus, contribution was appropriate. Id. at 988.
In the instant case, Sears allegedly was negligent when it sold Cribbs a gun in September, 1977. The United States allegedly
An order will be filed contemporaneously with this Memorandum Opinion.
In addition to the therapists, the plaintiffs' complaints name several other persons as defendants. The complaints also allege other theories of recovery in addition to negligent failure to warn. These additional defendants and theories of recovery are not relevant to the issues under consideration in the instant case.
In Daniels v. Andersen, the Nebraska Supreme Court relied on Restatement § 320 in finding that a jailer had a duty to protect his prisoners from the violent acts of others. Daniels v. Andersen, 195 Neb. at 98, 237 N.W.2d at 400. Although the Daniels decision did not refer to the general principle found in § 315, the court's adoption of § 320, a specific application of the general principle, suggests that the Nebraska court would follow the general principle on which § 320 is based. Similarly, in Rose v. Gisi, the court cited with approval the rule found in Restatement (First) of Torts § 318. Rose v. Gisi, 139 Neb. at 597-98, 298 N.W. at 336. Since the Restatement (First) of Torts § 318 and the Restatement (Second) of Torts § 318 are apparently the same, it would also appear that the Rose case implicitly applied the special relationship rule by its adoption of a specific application of the rule.