Tarasoff v Regents of University of California, 17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14 (1976)

The p TARASOFF V. REGENTS OF UNIVERSITY OF CALIFORNIA to at 17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14 (1976) of a On October 27, 1969, Prosenjit Poddar killed Tatiana Tarasoff. Plaintiffs to thi Tatiana's parents, allege that two months earlier Poddar confided his close intention to kill Tatiana to Dr. Lawrence Moore, a psychologist employed suffer by the Cowell Memorial Hospital at the University of California it preve Berkeley. They allege that on Moore's request, the campus police briefly 161 detained Poddar, but released him when he appeared rational. They fur- Burts ther claim that Dr. Harvey Powelson, Moore's superior, then directed that nger no further action be taken to detain Poddar. No one warned plaintiffs of Tatiana's peril. Plaintiffs' complaints predicate liability on . . . defendants' failure to warn plaintiffs of the impending danger. Defendants, in turn, assert that they owed o duty of reasonable care to Tatiana and that they are immune from suit under the California Tort Claims Act of 1963 (Gov. Code, 810ff). We shall explain that defendant therapists cannot escape liability merely because Tatiana herself was not their patient. 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 vari- ous 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 ander the circumstances. In the case at bar, plaintiffs admit that defendant therapists notified the police, but argue on appeal that the therapists failed to exercise reasonable care to protect Tatiana in that they did not confine Poddar and did not warn Tatiana or others likely to apprise her of the danger. Defendant therapists, however, are public employees. Consequently, to the extent that plaintiffs seek to predicate liability upon the therapists' failure to bring about Poddar's confinement, the therapists can claim immunity under Government Code section 856. No specific statutory provision, however, shields them from liability based upon failure to warn Tatiana or others likely to apprise her of the dan- ger, and Government Code section 820.2 does not protect such failure as an exercise of discretion. "The assertion that liability must . . . be denied because defendant bears no 'duty' to plaintiff begs the essential question-whether the plaintiff's interests are entitled to legal protection against the defendant's conduct. . .. (Duty) is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection." (Prosser, Law of Torts (3d ed. 1964)). Liability should be imposed for an injury occasioned to another by his want of ordinary care or skill. Whenever one person is by circumstances placed in such a position with regard to another . . . that if he did not use ordi- nary care and skill in his own conduct . . . he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger. We depart from "this fundamental principle" only upon the "balancing of a number of considerations"; major ones "are the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and conse-162 Chapter 5 quences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost and prevalence of insurance for the risk involved." The most important of these considerations in establishing duty is fore- seeability. As a general principle, a "defendant owes a duty of care to all per- sons who are foreseeably endangered by his conduct, with respect to all risks which make the conduct unreasonably dangerous." As we shall explain, how- ever, when the avoidance of foreseeable harm requires a defendant to control the conduct of another person, or to warn of such conduct, the common law has traditionally imposed liability only if the defendant bears some special relationship to the dangerous person or to the potential victim. Since the relationship between a therapist and his patient satisfies this requirement, we need not here decide whether foreseeability alone is sufficient to create a duty to exercise reasonable care to protect a potential victim of another's conduct. Although, as we have stated above, under the common law, as a general rule, one person owed no duty to control the conduct of another, nor to warn those endangered by such conduct, the courts have carved out an exception to this rule in cases in which the defendant stands in some special relationship to either the person whose conduct needs to be controlled or in a relationship to the foreseeable victim of that conduct. Applying this exception to the pres- ent case, we note that a relationship of defendant therapists to either Tatiana or Poddar will suffice to establish a duty of care; as explained in section 315 of the Restatement Second of Torts, a duty of care may arise from either fect "(a) a special relation . . . between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or (b) a special relation . .. between the actor and the other which gives to the other a right of protection." Although plaintiffs' pleadings assert no special relation between Tatiana and defendant therapists, they establish as between Poddar and wro defendant therapists the special relation that arises between a patient and his doctor or psychotherapist. Such a relationship may support affirmative duties for the benefit of third persons. Thus, for example, a hospital must dan exercise reasonable care to control the behavior of a patient which may dan endanger other persons. A doctor must also warn a patient if the patient's condition or medication renders certain conduct, such as driving a car, dangerous to others. Although the California decisions that recognize this duty have involved cases in which the defendant stood in a special relationship both to the victim subj and to the person whose conduct created the danger, we do not think that the duty should logically be constricted to such situations. Decisions of other jurisdictions hold that the single relationship of a doctor to his patient is suffi furt cient to support the duty to exercise reasonable care to protect others against dangers emanating from the patient's illness. The courts hold that a doctor is liable to persons infected by his patient if he negligently fails to diagnose a contagious disease or, having diagnosed the illness, fails to warn members of the patient's family. The163 Defendants contend, however, that imposition of a duty to exercise reasonable care to protect third persons is unworkable because therapists cannot accurately predict whether or not a patient will resort to violence. In support of this argument amicus representing the American Psychiatric Association and other professional societies cites numerous articles which indicate that therapists, in the present state of the art, are unable reliably to predict violent acts; their forecasts, amicus claims, tend consistently to overpredict violence, and indeed are more often wrong than right. Since predictions of violence are often erroneous, amicus concludes, the courts should not render rulings that predicate the liability of therapists upon the validity of such predictions. The role of the psychiatrist, who is indeed a practitioner of medicine, and that of the psychologist who performs an allied function, are like that of the physician who must conform to the standards of the profession and who must often make diagnoses and predictions based upon such evaluations. Thus the judgment of the therapist in diagnosing emotional disorders and in predict- ing whether a patient presents a serious danger of violence is comparable to the judgment which doctors and professionals must regularly render under askepted rules of responsibility. We recognize the difficulty that a therapist encounters in attempting to forecast whether a patient presents a serious danger of violence. Obviously we do not require that the therapist, in making that determination, render a per- lect performance; the therapist need only exercise "that reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of that professional specialty) under similar circumstances." Within the broad range of reasonable practice and treatment in which professional opinion and judgment may differ, the therapist is free to exercise his or her own best judgment without liability; proof, aided by hindsight, that he or she judged wrongly is insufficient to establish negligence. In the instant case, however, the pleadings do not raise any question as to failure of defendant therapists to predict that Poddar presented a serious danger of violence. On the contrary, the present complaints allege that defen- dant therapists did in fact predict that Poddar would kill, but were negligent in failing to warn. In each instance the adequacy of the therapist's conduct must be measured against the traditional negligence standard of the rendition of reasonable care under the circumstances. In sum, the therapist owes a legal duty not only to his patient, but also to his patient's would-be victim and is subject in both respects to scrutiny by judge and jury. Our current crowded and computerized society compels the interdepen dence of its members. In this risk-infested society we can hardly tolerate the further exposure to danger that would result from a concealed knowledge of the therapist that his patient was lethal. If the exercise of reasonable care to protect the threatened victim requires the therapist to warn the endan- gered party or those who can reasonably be expected to notify him, we see no sufficient societal interest that would protect and justify concealment. The containment of such risks lies in the public interest. For the foregoing 64 Chapter 5 reasons, we find that plaintiffs' complaints can be amended to state a cause of action against defendants for breach of a duty to exercise reasonable care to protect Tatiana. We conclude that defendant therapists in the present case are not immune from liability for their failure to warn of Tatiana's peril. We conclude, therefore, that the therapist defendants' failure to warn Tatiana or those who reasonably could have been expected to notify her of her peril does not fall within the absolute protection afforded by section 820.2 of the Government Code. The judgment of the superior court in favor of defendants is reversed, and the cause remanded for further proceedings consistent with the views expressed herein. Questions about the case: 1. What is the plaintiff's theory about the liability of Dr. Moore? 2. Are therapists always free from liability when the person who is injured is not their patient? 3. What test does the court create to determine when a therapist should be liable to a third party? 4. What balancing of principles does the court engage in to determine liability in these cases? 5. How does the court explain foreseeability in this case