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24799 - Bishop v. South Carolina Department of Mental Health

Davis Adv. Sh. No. 21
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court

Brenda D. Bishop, as

Guardian ad Litem for

Bobbi Hatley Robertson, Petitioner,

V.

South Carolina

Department of Mental

Health, Respondent.

ON WRIT OF CERTIORARI TO THE COURT OF

APPEALS

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

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BISHOP v. SOUTH CAROLINA DEPARTMENT OF MENTAL HEALTH

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

as modified.

FACTS

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

probate court.

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

mother.

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

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BISHOP v. SOUTH CAROLINA DEPARTMENT OF MENTAL HEALTH

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.

ISSUES

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

mother?


1This issue is not before this Court.

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BISHOP v. SOUTH CAROLINA DEPARTMENT OF MENTAL HEALTH

DISCUSSION

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.

I.

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.

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BISHOP v. SOUTH CAROLINA DEPARTMENT OF MENTAL HEALTH

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

the court,

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

mother's release.

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BISHOP v. SOUTH CAROLINA DEPARTMENT OF MENTAL HEALTH

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

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BISHOP v. SOUTH CAROLINA DEPARTMENT OF MENTAL HEALTH

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


2Because we find the facts are sufficiently developed in the record

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

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BISHOP v. SOUTH CAROLINA DEPARTMENT OF MENTAL HEALTH

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.

II.

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


focus should be on what victim knew. We disagree. Grandmother was the

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.

p.17


BISHOP v. SOUTH CAROLINA DEPARTMENT OF MENTAL HEALTH

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

mother.

AFFIRMED AS MODIFIED.

FINNEY, C.J. , and MOORE, A. J. concur. TOAL and WALLER, JJ. ,

dissenting in separate opinion.

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BISHOP v. SOUTH CAROLINA DEPARTM= OF MENTAL HEALTH

TOAL., A.J.: I respectfully dissent, believing that this case ought to be

reversed.

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

p.19


BISHOP v. SOUTH CAROLINA DEPARTMENT OF MENTAL HEALTH

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.

p.20