THE STATE OF SOUTH CAROLINA
In The Supreme Court
Brenda D. Bishop, as
Guardian ad Litem for
Bobbi Hatley Robertson, Petitioner,
Department of Mental
ON WRIT OF CERTIORARI TO THE COURT OF
Appeal From Greenville County
Larry R. Patterson, Judge
Opinion No. 24799
Heard December 4, 1997 - Filed June 8, 1998
AFFIRMED AS MODIFIED
H.W. Pat Paschal, Jr., of Miller & Paschal, of
Greenville, for petitioner.
Ashby W. Davis, Steven A. Snyder, and Gregory A.
Morton, all of Donnan, Morton, Davis & Snyder,
P.A., of Greenville, for respondent.
BURNETT, A.J.: This Court granted certiorari to review the
Court of Appeals' opinion in Bishop v. South Carolina Department of
Mental Health, 323 S.C. 158, 473 S.E.2d 814 (Ct. App. 1996). We affirm
On March 1, 1990, Petitioner Brenda Bishop (grandmother)
signed an affidavit which led to the involuntary commitment of her
daughter, Tammi Lee Hatley (mother), to Respondent South Carolina
Department of Mental Health (Department) for mental illness.
Specifically, grandmother alleged mother had made threats against Bobbi
Hatley Robertson (victim), mother's three-year-old daughter. At the time,,
grandmother had legal custody of victim.
Mother was lawfully committed to the Patrick B. Harris
Psychiatric Hospital where she was examined by a physician, observed by
nurses, and interviewed by a social worker. Two designated examiners
examined mother and determined she was not mentally ill. Consequently,
on March 2, 1990, mother was released pursuant to an order of the
On March 3, 1990, mother appeared at the home of
grandmother. Grandmother allowed mother to enter the home and
grandmother, mother and victim spent several hours visiting together.
Grandmother then acquiesced to mother's request to allow her to have
custody of victim for a specific period of time. Thereafter, victim left with
After mother returned victim to grandmother a few hours
later, grandmother noticed victim had green felt tip magic markings on
her arms and body, including her abdominal and vaginal areas. Victim
was examined by a physician at Greenville Memorial Hospital; no evidence
of penetration or other trauma was found.
Grandmother brought this action on behalf of victim against
the Department for the physical abuse of victim allegedly received at the
hands of mother. Specifically, grandmother alleged the Department was
negligent in releasing mother, in failing to warn of her release, and in
failing to properly diagnose and treat mother for those illnesses which
caused her to have dangerous propensities towards victim.
The circuit court granted summary judgment in favor of the
Department. The court held the Department was not civilly liable
pursuant to the provisions of S.C. Code Ann. §§ 15-78-60 (Supp. 1997) and
44-17-900 (1976) for releasing mother.1 The court concluded the
Department had no duty to warn grandmother of mother's release. The
court found grandmother was well aware of mother's alleged threats at the
time she permitted mother to take victim for visitation. Finally, the
circuit court held any duty of the Department regarding the diagnosis and
treatment of mother was owed to mother and not to third parties.
On appeal, grandmother argued the circuit court erred in
granting summary judgment on victim's negligence claims against the
Department based on its findings that the Department did not owe a duty
to warn victim of mother's release and that the Department did not owe
any duty of care to victim regarding mother's treatment. The Court of
Appeals disagreed and affirmed the circuit court's grant of summary
judgment. Bishop, supra.
The Court of Appeals found the evidence established mother
did not make a specific threat of harm to victim while in the Department's
custody and, therefore, the Department had no duty to warn of her
release. The Court of Appeals noted grandmother, victim's guardians was
obviously aware of mother's release when she appeared at her home and
grandmother was aware of mother's threats to harm victim, yet
grandmother allowed mother to take victim from her home for an
unsupervised visit. With regard to the Department's duty to properly
diagnose and treat mother, the Court of Appeals held the Department
owed this duty to mother and not victim. Id.
I. Did the Court of Appeals err in affirming the circuit court's
grant of summary judgment on the basis that the Department
owed no duty to warn victim of mother's release?
II. Did the Court of Appeals err in holding the Department
did not owe a duty of care to victim to properly diagnose and
treat mother; instead, this duty of care was only owed to
Standard of Review
Summary judgment is appropriate where it is clear there is no
genuine issue of material fact, and the moving party is entitled to
judgment as a matter of law. Hamiter v. Retirement Division of South
Carolina Budget and Control Board, _ S.C. _, 484 S.E.2d 586 (1997).
In determining whether any triable issues of fact exist, the evidence and
all inferences which can be reasonably drawn from the evidence must be
viewed in the light most favorable to the nonmoving party. Id.
Grandmother argues the Court of Appeals erred in affirming
the grant of summary judgment to the Department because the
Department had a common law duty to warn victim of mother's release
since victim was a known potential victim of mother. Specifically,
grandmother contends the Court of Appeals erred in finding because no
express specific threat of harm was made by mother against victim while
in the custody of the Department, the Department had no duty to warn
victim. According to grandmother, the Department knew mother had
made specific threats against victim; therefore, it had a duty to warn
victim upon mother's release.
An essential element in a cause of action for negligence is the
existence of a legal duty of care owed by the defendant to the plaintiff.
Without a duty, there is no actionable negligence. Rogers v. S.C. Dep't of
Parole & Community Corrections, 320 S.C. 253, 464 @.E.2d 330 (1995).
South Carolina law does not recognize a general duty to warn
of the dangerous propensities of others. Rogers, supra; Sharpe v. S.C.
Dep't of Mental Health, 292 S.C. 11, 354 S.E.2d 778 (Ct. App. 1987), cert.
dismissed, 294 S.C. 469, 366 S.E.2d 12 (1988). However, when a
defendant has the ability to monitor, supervise, and control an individual's
conduct, a special relationship exists between the defendant and the
individual, and the defendant may have a common law duty to warn
potential victims of the individual's dangerous conduct. Rogers, supra
(citing Restatement (Second) of Torts §§ 315 & 319). This duty to warn
arises when the individual has made a specific threat of harm directed at
a specific individual. Id.
The seminal case on the liability of one treating a mentally
afflicted patient for failure to warn or protect third persons threatened by
a patient is Tarasoff v. Regents of Universitv of California, 551 P.2d 334
(Cal. 1976). In Tarasoff, the court permitted the plaintiffs to amend their
complaints to state a cause of action against the therapists by asserting
that the therapists in fact determined that their patient presented a
serious danger of violence to the decedent, or pursuant to the standards of
their profession should have so determined, but nevertheless failed to
exercise reasonable care to protect decedent from that danger. The
patient, a voluntary out-patient, informed his therapist that he was going
to kill a girl, unnamed yet readily identifiable as the decedent, when she
returned from Brazil. No one warned the decedent of her peril. Shortly
after decedent returned from Brazil, the patient killed her. According to
When a therapist determines, or pursuant to the
standards of his profession should determine, that
his patient presents a serious danger of violence to
another, he incurs an obligation to use reasonable
care to protect the intended victim against such
danger. The discharge of this duty may require the
therapist to take one or more of various steps,
depending upon the nature of the case. Thus it
may call for him to warn the intended victim or
others likely to apprise the victim of the danger, to
notify the police, or to take whatever other steps
are reasonably necessary under the circumstances.
Id. at 340. The court, citing Restatement (Second) of Torts §§ 315-320 to
support its position, stated when the defendant stands in some special
relationship to the person whose conduct needs to be controlled, a duty of
care may be imposed upon the defendant to protect threatened third
parties from harm. The court then found a special relationship between
the patient and therapists which would give rise to this duty to protect a
threatened third person from harm. Id.
Here, the Department had a special relationship with mother
because the Department had custody and control of mother. Thus, if the
Department knew or should have known a specific threat was made by
mother, the Department had a duty to warn the threatened third party of
In our opinion the Court of Appeals' interpretation of Rogers
requiring the threat to be made while in the custody of defendant is too
narrow. While cases following Tarasoff have made clear that this duty is
only owed when a patient specifically threatens a readily identifiable third
party, none of these cases limit liability by requiring the threat to be
made while under the control of or in the custody of the defendant.
Rogers, supra; Thompson v. County of Alameda, 614 P.2d 728 (Cal. 1980);
Cairl v. State, 323 N.W.2d 20 (Minn. 1982). Instead, all that is required
is the defendant be aware or should have been aware of the specific threat
made by the patient to harm a specific person. See Jablonski v. United
States, 712 F.2d 391 (9th Cir. 1983) (patient's previous history indicated
he would direct his violence against victim).
Although the Department's discharge summary stated mother
related to the examiners she had no intention of hurting herself or her
family and mother did not make a specific threat of harm to her child
while in the Department's custody, the Department was aware mother had
made specific threats to harm victim in the past. These threats were
noted on the documents admitting mother into the custody of the
Department. This knowledge was sufficient to trigger the Department's
duty to warn victim of mother's release because a specific threat had been
made by mother to harm a specific person.
However, we affirm the grant of summary judgment in favor of
the Department. Even though the Department failed to warn of mother's
release thus breaching its duty to warn, its breach of this duty was not a
proximate cause of the harm suffered by victim.
To establish a cause of action in negligence, three essential
elements must be proven: (1) duty of care owed by defendant to plaintiff;
(2) breach of that duty by a negligent act or omission; and (3) damage
proximately resulting from the breach of duty. Rickborn v. Liberty Life
Ins. Co., 321 S.C. 291, 468 S.E.2d 292 (1996). Negligence is not actionable
unless it is a proximate cause of the injury. Hanselmann v. McCardle
275 S.C. 46, 267 S.E.2d 531 (1980). Proximate cause requires proof Of
both causation in fact and legal cause. Oliver v. S.C. Dep't of Highways
and Public Transportation, 309 S.C. 313, 422 S.E.2d 128 (1992).
Causation in fact is proved by establishing the injury would not have
occurred "but for" the defendant's negligence. Id. Legal cause is proved
by establishing foreseeability. Oliver, supra; Koester v. Carolina Rental
Ctr., Inc., 313 S.C. 490, 443 S.E.2d 392 (1994). Foreseeability is
determined by looking to the natural and probable consequences of the
complained of act. Koester, supra. The defendant's negligence does not
have to be the sole proximate cause of the plaintiff's injury; instead, the
plaintiff must prove the defendant's negligence was at least one of the
proximate causes of the injury. Hughes v. Children's Clinic, P.A., 269 S.C.
389, 237 S.E.2d 753 (1977).
The intervening negligence of a third person will not excuse
the first wrongdoer if such intervention ought to have been foreseen in the
exercise of due care. In such case, the original negligence still remains
active, and a contributing cause of the injury. Locklear v. Southeastern
Stages, Inc., 193 S.C. 309, 8 S.E.2d 321 (1940). The test by which the
negligent conduct of the original wrongdoer is to be insulated as a matter
of law by the independent negligent conduct of another is whether the
intervening act and the injury resulting therefrom are of such character
that the author of the primary negligence should have reasonably foreseen
and anticipated them in light of the attendant circumstances. Oliver,
supra; Locklear, supra.
It is generally for the jury to determine whether the
defendant's negligence was a concurring proximate cause of the plaintiff's
injuries. Id. Only when the evidence is susceptible of only one inference
does proximate cause become a matter of law for the court. Oliver., supra.
The evidence in the record includes a report written by the
emergency trauma center social worker stating the "[c]hild visited with
mother earlier today." Further, the trial judge made extensive findings in
his order based on the evidence introduced at the summary judgment
hearing that grandmother allowed mother to enter the home; grandmother,
mother and victim visited for several hours in the home; and grandmother
agreed to allow mother to have unsupervised custody of victim for a
specific period of time.2
Grandmother was well aware that mother had made threats
against victim.3 When mother appeared at grandmother's house three
with regard to grandmother's intervening negligence, we affirm on this
ground even though the trial judge made no specific ruling on this issue in
his order. See Rule 220(c), SCACR.
3Grandmother claims because the duty to warn was owed to victim,
the grandmother's knowledge of mother's threats was insufficient. The
days after her commitment, grandmother became aware mother had been
released from the Department. Grandmother allowed mother to enter her
home, and after spending several hours visiting with mother, grandmother
allowed mother to take victim from the home for an unsupervised visit.
Grandmother had ample knowledge, without the Department's warning, to
make an informed decision about whether to allow victim to visit with
mother unsupervised. Grandmother made no allegation that she was
alarmed or felt threatened when mother entered the house or when
mother asked to visit with the child alone. Further, grandmother did not
allege that she attempted to contact any authorities concerning mother's
release when mother appeared at her residence. Thus, grandmother was
negligent in allowing victim to leave with mother.
We find, as a matter of law, the Department could not
reasonably foresee grandmother would allow mother to visit with victim
unsupervised since only three days earlier grandmother had mother
involuntarily committed because mother was threatening to harm victim.
The evidence is susceptible of only this inference.4 Consequently,
grandmother's intervening negligence supersedes the Department's
negligence for failing to warn of mother's release and the Department will
not be held liable for its negligence because its negligence was not a
proximate cause of victim's harm.
Grandmother contends the Court of Appeals erred in affirming
the grant of summary judgment to the Department on the issue of alleged
negligence in the diagnosis and treatment of mother because the minor
legal guardian of victim and as such she was responsible for making
decisions to ensure victim's safety. Victim was too young to make these
decisions for herself; therefore, it is the grandmother's knowledge that is
important. See Tarasoff. supra (duty to warn victim or person who would
apprise victim of danger).
4We disagree with the dissent's finding that the evidence is
susceptible to at least two other reasonable inferences. The dissent is
speculating as to possible motivations to explain grandmother's actions.
However, the motivation for grandmother's actions are irrelevant. Instead,
application of intervening negligence arises from grandmother's conduct
and grandmother's assumed motivations do not displace her conduct.
child was a foreseeable plaintiff within the scope of danger and the
Department owed a duty of care to victim. We disagree.
In South Carolina, a malpractice claim canonry be maintained
by the patient. If a physician deviated from accepted standards of
professional care in treating a patient, he breached a duty of care to the
patient and not a third party. Sharpe v. S.C. Dep't of Mental Health, 292
11, 354 S.E.2d 778 (Ct. App. 1987) (concurring opinion of Bell, J.), cert.
dismissed, 294 S.C. 469, 366 S.E.2d 12 (1988) (duty of care owed to
patient and not third parties). Other jurisdictions agree with this
requirement and do not allow injured third parties to recover. See Moye
v. United States, 735 F. Supp. 179 (E.D.N.C. 1990) (there must be a
physician-patient relationship between victim and doctor before the court
will find a doctor owes a victim harmed by his patient a duty of care to
properly evaluate and treat patient); Russell v. Adams, 482 S.E.2d 30
(N.C. Ct. App. 1997) (psychologists, like other health care providers, may
be held liable in medical malpractice only to their patients).
However, some jurisdictions allow third parties to recover for a
physician's malpractice under certain circumstances. See Molien v. Kaiser
Foundation Hospitals, 616 P.2d 813 (Cal. 1980) (because a negligent
misdiagnosis of a communicable disease may foreseeably cause injury to
close members of patient's family, the physician's duty of care extends to
them); Hofmann v. Blackmon, 241 So.2d 752 (Fla. App. 1970) (a doctor is
liable to persons infected by his patient if he negligently fails to diagnose
a contagious disease); Wojcik v. Aluminum Co. of America, 183 N.Y.S.2d
351 (Sup. Ct. 1959) (doctor is liable for failing to warn patient's family of
patient's contagious disease).
The physician-patient relationship is not a requisite in every
legal action against a medical provider. A reasonably foreseeable third
party, who is harmed by a physician's malpractice in treating a patient,
may initiate an action against a physician for malpractice under limited
circumstances. See Molien v. Kaiser Foundation Hospitals. supra;
Hofmann v. Blackmon, supra; Wojcik v. Aluminum Co. of America, supra.
However, in the matter sub judice, the Department did not owe victim a
duty to properly diagnose and treat mother. This duty was owed only to
AFFIRMED AS MODIFIED.
FINNEY, C.J. , and MOORE, A. J. concur. TOAL and WALLER, JJ. ,
dissenting in separate opinion.
TOAL., A.J.: I respectfully dissent, believing that this case ought to be
Essentially, the majority finds that the trial court and the Court of
Appeals committed error granting summary judgment on a finding that the
Department of Mental Health had no duty to warn grandmother that it was
releasing mother. The majority rightly concludes that the Department had
specific knowledge that mother was a threat to grandmother. Further, the
majority finds that the Court of Appeals erred in interpreting Rogers v. South
Carolina Department of Parole & Community Corrections, 320 S.C. 253, 464
S.E.2d 330 (1995) to require a specific threat made while mother was in
custody. Nevertheless, the majority upholds, on the ground of intervening
negligence of grandmother, the Court of Appeals' affirmance of the trial
court's grant of summary judgment.
It is improper for the majority to base its holding on intervening
negligence inasmuch as this issue is procedurally barred. In fact, a double
preservation sin is being committed here. First, the issue of intervening
negligence was not raised to, or addressed by, the trial court. See Medlin v.
South Carolina Farm Bureau Mut. Ins. Co.,_S.C._, 480 S.E.2d 739
(1997)(Issue not ruled upon by the trial court is procedurally barred.).
Second, the issue was never raised to, or briefed for, this Court. See State
v. Sullivan, 277 S.C. 35, 282 S.E.2d 838 (1981)(An issue not argued in the
appellant's brief is deemed abandoned.). Certainly, under Rule 220(c),
SCACR, the appellate court may affirm any ruling, order, or judgment upon
any ground appearing in the record on appeal. However, here we do not
have any ground in the record to justify affirmance. The issue has not be
raised legally, nor has it really been developed factually. If there has not
been factual development about grandmother's negligence, on what basis can
this Court affirm? To make a factual determination, there must be facts
before us. To suggest that we may affirm on the basis of the mere
allegations of the parties is to impermissibly expand the scope of Rule 220(c).
With its decision, the majority has, in effect, changed Rule 220(c) from
affirmance on the basis of "any" ground in the record, to affirmance on the
basis of "no" ground in the record.
However, even if we assume that this Court may properly reach the
issue of intervening negligence, it is improper for us to rule upon the issue
as a matter of law because it is quintessentially a question of fact. See
Dixon v. Besco Engineering, Inc., 320 S.C. 174, 463 S.E.2d 636 (Ct. App.
1995)(Whether an intervening act breaks the causal connection is a question
for the fact-finder.); Small v. Pioneer Machinery, Inc., 316 S.C. 479, 450
S.E.2d 609 (Ct. App. 1994)(The defenses of contributory negligence and
assumption of risk ordinarily present questions of fact for the jury, and only
rarely become questions of law for the court to determine. The same thing
may be said of the defense of intervening third-party negligence.).
The majority declares that the evidence is susceptible of only one
inference. To the contrary, there are at least two other reasonable inferences.
Although there is little to no evidence of grandmother's negligence, there is
evidence that grandmother may have acted reasonably. The one fact that may
clearly be derived from the record is that grandmother had been threatened.
The mental examination report, prepared by a licensed physician, states:
"[Mother] is a danger to her mom [i.e. grandmother] and her daughter.
Threatened mom last pm." Another medical report states: "Possibly into
satanism. Threatened mother and daughter." Further, "Threatened daughter
& mother last night. 'Put me in the hospital and I'll kill you."' Because
grandmother had been threatened (even with death), we may well infer that
she could have still felt intimidated of mother, even after her release, and
that she gave up the child to mother for fear of harm.
Alternatively, we may infer that when grandmother learned that the
Department had released mother, she could assume that the Department had
correctly diagnosed and treated mother. It is alleged that mother, after her
release, visited with grandmother for several hours. Perhaps mother was
acting normally during these hours, leading grandmother to conclude that
mother had been treated by the Department. On this basis, grandmother
may have allowed mother to take the child.
Accordingly, whether grandmother allowed the child to be taken by
mother because she was intimidated, or whether sh6 felt mother had been
treated, is a factual question that must be determined on remand by a jury
on the basis of evidence to be presented, and not by this Court on the basis
of a factually undeveloped record.
I would reverse the Court of Appeals' affirmance of the trial court's
grant of summary judgment and remand this matter for trial.
WALLER, A. J. , concurs.