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Duty to Warn
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Developments in Kansas Law Since Tarasoff

Camille Nohe

Assistant Attorney General & General Counsel

to Behavioral Sciences Regulatory Board

July 2000

Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right. In every instance, before an act is said to be negligent, there must exist a duty to the individual complaining, the observance of which would have averted or avoided the injury. The plaintiff who sues his fellow man sues for a breach of duty owing to himself.

Legal duties are not discoverable facts of nature, but merely conclusory expressions that, in cases of a particular type, liability should be imposed for damage done. 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.

In some circumstances an actionable negligence case may involve a failure or breach of a duty to warn another of a dangerous person's intentions. Since the now famous 1976 Tarasoff case, various duty to warn cases have made their way to the Kansas appellate courts. Following an overview of Tarasoff is a review of those cases that have applicability to mental health therapists in Kansas and a discussion of the direction in which the Kansas courts appear to be headed concerning a mental health therapist's duty to warn.

* * *

In Tarasoff, a voluntary outpatient was receiving therapy at a hospital. The patient informed the therapist that he was going to kill an unnamed girl, readily identifiable as Tatiana Tarasoff, when she returned home from spending the summer in Brazil. While the therapist took a preliminary step toward seeking involuntary commitment of the patient, that process was not completed. Shortly after Tatiana's return from Brazil, the patient went to her residence and killed her. It was within this context that the California Supreme Court held the therapist liable for failure to warn Tatiana or her parents of the danger posed by the patient.

In the course of its decision, the Court discussed and balanced competing policies of confidentiality and protection of other persons:

We realize that the open and confidential character of psychotherapeutic dialogue encourages patients to express threats of violence, few of which are ever executed. Certainly a therapist should not be encouraged routinely to reveal such threats; such disclosures could seriously disrupt the patient's relationship with his therapist and with the persons threatened. To the contrary, the therapist's obligations to this patient require that he not disclose a confidence unless such disclosure is necessary to avert danger to others, and even then that he do so discreetly, and in a fashion that would preserve the privacy of his patient to the fullest extent compatible with the prevention of the threatened danger.

We conclude that the public policy favoring protection of the confidential character of patient-psychotherapist communications must yield to the extent to which disclosure is essential to avert danger to others. The protective privilege ends where the public peril begins.

The Tarasoff Court thus held:

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.

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The 1983 Kansas case of Durflinger v. Artiles involved an involuntarily committed patient (passive-aggressive personality with sociopathic tendencies) who was discharged from a hospital as being no longer in need of care or treatment. A week after his discharge, the former patient killed his mother and younger brother by shooting each several times with a rifle. Surviving family members sued the doctors (psychiatrist/hospital clinical director, psychologist, attending and ward physicians) employed at Larned State Hospital during the time of the patient's confinement.

The actual issue before the Kansas Supreme Court was whether a claim for negligent release of a patient would be recognized in Kansas. The defendants argued that they should be insulated from civil liability for their acts, even if negligent, on the basis that prediction of dangerousness of a mental patient is too difficult to make and, further, to hold otherwise would seriously cripple their ability to function professionally and would have a catastrophic effect on the civil rights of mentally ill persons. The Kansas Supreme Court did not agree. In reaching its affirmative decision that a negligent release claim would be recognized in Kansas, the Court favorably discussed the duty to warn concepts developed in Tarasoff. Quoting directly from that case, the Kansas Court affirmed:

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 predicting whether a patient presents a serious danger of violence is comparable to the judgment which doctors and professionals must regularly render under accepted 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 perfect performance; the therapist need only exercise 'that reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of [that professional speciality] 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.

After concluding that an action for negligent release of a patient with violent propensities could be maintained in Kansas, the Court acknowledged that it could end the discussion. However, the Court believed it important to distinguish negligent release actions from other types of third-party actions against physicians (or psychotherapists) for damages done by their mental patients.

In these other actions liability is not predicated upon the inherent duty of the physician in the ordinary course of treatment of his patient, but rather that a special relationship existed which required the physician to take some affirmative action outside the regular course of treatment to protect third persons. Such affirmative actions are for the benefit of third parties, not the patient, and involve such steps as notifying a potential victim, calling the police or instituting commitment proceedings.

The Tarasoff situation was the first example the Kansas Supreme Court mentioned in its duty to warn discussion:

The therapist had knowledge an office patient was dangerous to a readily identifiable third person. He did not warn the third person and the patient murdered her. The California court held the therapist had an affirmative duty to warn the victim, call the police, or take other appropriate action for the victim's protection.

The Court also referenced the 1980 Nebraska case of Lipari v. Sears, Roebuck & Company that involved a mental patient who had been committed to and had been receiving psychiatric care from the Veterans Administration. After his discharge the patient purchased a shotgun and resumed psychiatric day care treatment from the V.A. for about a month. The patient then stopped the treatment and a month later walked into a nightclub and shot one person to death and seriously wounded another. While the subsequent lawsuit was a claim for failure to detain the patient by seeking commitment, the Kansas court recognized that the duty imposed by the Nebraska Court required the taking of an affirmative action for the protection of a third party.

The Kansas Court in Durflinger noted that in both Tarasoff and Lipari a "special relationship" existed between the therapist and patient which required the therapist to take action for the benefit of a third person, and extensively quoted the Nebraska Lipari decision. In so doing the Court again countered arguments about the difficulty of predicting dangerousness:

The Court recognizes that it may be difficult for medical professionals to predict whether a particular mental patient may pose a danger to himself or others. This factor alone, however, does not justify barring recovery in all situations. The standard of care for health professionals adequately takes into account the difficult nature of the problem faced by psychotherapists. . . . The Court is of the opinion that the difficulty in predicting dangerousness does not justify denying recovery in all cases.

Again, quoting Lipari favorably:

To summarize, this [Nebraska] 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.

As noted, while the Durflinger court contributed a great deal of discussion concerning a duty to warn, its actual decision involved liability for the negligent release of a patient with violent propensities. However, in 1984, the 10th Circuit Federal Court of Appeals was called upon to decide whether liability in Kansas could be predicated upon a therapist's failure to warn or failure to detain based upon a special relationship.

* * *

The case of Beck v. Kansas University Psychiatry Foundation, arose out of the following situation: Boan, a disturbed former prisoner and former mental patient walked into the emergency room at the KU Medical Center and fired three shotgun blasts, killing two people. In a lawsuit that followed this incident, plaintiffs alleged negligence by defendants for failure to take precautions to deal with the violent and dangerous propensities of a former patient. One of the precautions plaintiffs claimed was a duty to warn others. Looking directly at the discussion in Durflinger, the federal court said:

[T]he Kansas Supreme Court in Durflinger, through its approval of Tarasoff v. Regents of University of California and Lipari v. Sears, Roebuck & Company, gave a strong indication that Kansas would allow liability for failure to warn.

The federal district court then determined, under the facts of the case, that the plaintiffs had stated a legally sufficient claim of duty to warn and the case should go forward to trial. However (for reasons not important to this discussion), the plaintiffs dismissed the federal court case and re-filed their lawsuit in Kansas state court. The case eventually reached the Kansas Supreme Court which viewed the "duty to warn" issue somewhat differently than the federal district court had. Instead of relying on Tarasoff and its Kansas progeny, the Durflinger case, the Court looked to the 1984 Kansas case of Cansler v. State. The Cansler situation involved seven armed and dangerous convicts who had escaped from Kansas State Penitentiary, a fact not disclosed to law enforcement agencies in the area. There the Court had based its ultimate decision on a common-law duty imposed upon all who take charge of persons extremely dangerous to others and had held that failure of the State to give prompt warning to nearby law enforcement agencies constituted a breach of a duty to warn.

In the case before it now, Beck, the Court determined that the KU Medical Center did not take charge of Boan and did not have custody or control over him at any time after his release from the penitentiary or at the time he entered the Medical Center with shotgun in hand. Therefore, the Court said, the common law did not impose upon the Medical Center the duty to warn which was found applicable in Cansler. Further, the Court stated:

Simply because Boan had assaulted Medical Center personnel some years before, such remote acts would not form a basis upon which the Center could reasonably be expected to have anticipated this occurrence, taken steps to prevent or forestall it, or warned all persons who came into its building that Boan might strike at any time.

Thus the Court concluded:

Boan threatened to commit or committed acts of violence at the Medical Center some years before the present incident, but there is no claim that the University police or any other employees of the Medical Center knew or should have known, immediately prior to the March 20 shooting incident, that Boan was armed and approaching the emergency facility.

In other words, because KU Medical Center was not a custodial setting in relation to Boan and Boan's acts of violence were not reasonably foreseeable to the Medical Center, a duty to warn others was not triggered.

* * *

Throughout the 1970's and 1980's Nolan Prewett received both inpatient and outpatient treatment at various Veterans Administration medical centers where he incessantly exhibited violent and sexually deviant behavior, repeatedly attacking patients as well as members of his family.

Eight days after he was discharged in the mid-80's, he raped, sodomized and killed a three year old girl and her six year old sister. Within weeks prior to his discharge, he had acknowledged fantasies about little girls, experienced nightmares of combat scenes in which people were killed, and expressed a desire to purchase a shotgun. Further, just prior to his discharge, a VA doctor identified the young sisters as potential targets of Prewett.

Surviving family members sued the VA in federal court on a number of legal theories, including breach of a duty to warn. The federal district court was thus again called on to determine whether Kansas courts would find a duty to warn under the facts of the case. The federal court noted that the Kansas Supreme Court had made reference to the "special relation rule" in five earlier cases. Using this approach, the federal court found that the psychotherapist-patient relationship, as a "special relationship," was a sufficient basis for imposing on the therapist an affirmative duty to warn for the benefit of other persons. Citing Tarasoff, Durflinger, Lipari, and a New Jersey case, the federal court determined that Kansas would, however, consider "foreseeability" in determining whether to impose liability for breach of a duty to warn. The court thus held:

We are of the opinion that the Kansas Supreme court would adopt the section 315 Restatement approach and would limit the liability of defendant to those persons who were foreseeably endangered by the alleged negligence of the VA. Thus, [defendants] must establish that the VA psychiatrists or therapists who treated Nolan Prewett should have determined under the applicable standards of their profession that Prewett posed an unreasonable risk of harm to [the sisters], or a class of persons of which [the sisters] were members.

Whether the VA's employees should have foreseen the unreasonable risk of harm to other persons [specifically the young sisters], the court said, was a question of fact for jury determination at trial.

* * *

In 1993 the Kansas Department of Corrections was sued for an incident arising from one prisoner's attack on another prisoner. In the ensuing appeal the Kansas Court of Appeals discussed what is meant by "forseeability" in the context of a duty to warn case:

Forseeability, for the purpose of proving negligence [i.e. breach of a duty], is defined as a common-sense perception of the risks involved in certain situations and includes whatever is likely enough to happen that a reasonably prudent person would take it into account. An injury is forseeable so as to give rise to a duty of care [i.e. a duty to warn] where a defendant knows or reasonably should know that an action or the failure to act will likely result in harm.

* * *

Ron Boulanger suffered a brain injury while a teenager, resulting in physical and mental disabilities. In the late 1980's he became preoccupied with religion and believed that his uncle was the devil incarnate, at one time physically assaulting his uncle. He was voluntarily hospitalized on three occasions and subsequently transferred to an intermediate care facility (not a mental health treatment center) on a voluntary basis. At the time of the transfer he was not considered dangerous to himself or others. The purpose of the transfer was to provide him with a structured environment, daily medication monitoring and training in independent living skills. While there, he did not exhibit any homicidal or suicidal ideation, nor any intention to harm his uncle. Upon discharge, he went to live with his father. Despite the uncle's extreme reluctance, the father persuaded the uncle to enter the home while Ron was present. The uncle became apprehensive in Ron's presence and attempted to leave, but the father insisted that he stay. Ron left the room, returned a few minutes later with a shotgun and shot his uncle.

The uncle sued the treating psychiatrist who monitored Ron's medication at the intermediate care facility asserting, among other claims, a duty to warn him of Ron's discharge. The issue ultimately came before the Kansas Supreme Court. The Court first noted that an affirmative duty to protect third persons from harm based on the "special relationship" analysis has been recognized in Kansas. The Court further specifically noted that each of the cases recognizing a special relationship were fact specific and the results reached were dictated by the facts in each case.

Then, assuming without deciding, that a duty to control might be applicable under certain circumstances to the relationship between a psychiatrist and a voluntary patient, the Court concluded that under the facts of this case a special relationship did not exist. Thus there was no special relationship that supported a duty to warn (as an extension of a duty to control the conduct of another) as alleged by the uncle.

This conclusion was based on the facts that Ron was a voluntary patient, free to leave at any time; that he was referred to an intermediate care facility for structured living, medication monitoring and independent living training, and not for intensive psychotherapy or psychiatric treatment; and most importantly that the uncle was well aware than Ron had been a threat to him in the past and was capable of violence. The Court found that the uncontroverted facts established that the uncle was fully apprised of the danger posed by Ron, and very clearly held:

The duty to warn does not arise when the victim already knows of the danger.

* * *

In a 1996 case some bicyclists were injured when they were struck by a car driven by a woman who fell asleep at the wheel. The woman had suffered from an excessive sleep disorder for years and was aware that she might become drowsy while driving. The bicyclists sued the motorist's physician, alleging negligence on his part for failing to warn the patient not to drive. The Court reviewed prior cases that had addressed "special relationships" in the context of a duty to warn claim, and in language limiting the duty to warn, reached the following conclusions:

None of the Kansas cases in which a "special relationship" has been found concern medical doctor/outpatient relationships.

A section 315 duty [special relationship triggering duty to warn] has been imposed only in situations involving a dangerous person in a custodial setting.

A duty owing under section 315(a) has been found only in situations in which the party owing the duty did have the ability or right to control the third person causing the harm.

Citing the Boulanger case, the Court found no special relationship between the doctor and his outpatient and further reiterated the principle that there is no duty to warn someone of what they already know.

* * *

In a 1997 case, the Kansas Supreme Court affirmed the Court of Appeals understanding of "foreseeability" by reiterating what was stated in the 1993 Cupples case:

Foreseeability, for the purpose of proving negligence, is defined as a common-sense perception of the risks involved in certain situations and includes whatever is likely enough to happen that a reasonably prudent person would take it into account. An injury is foreseeable so as to give rise to a duty of care where a defendant knows or reasonably should know that an action or the failure to act will likely result in harm.

* * *

In the late 1990's, a young woman employed at a restaurant was raped and killed by a co-worker, a parolee who had been conditionally released from prison. Her parents sued the Kansas Department of Corrections and the parole officer, claiming in part that the department and the parole officer breached a duty to warn their daughter of the parolee's dangerous propensities.

On appeal, the Kansas Supreme Court reiterated that generally, in the absence of a "special relationship," there is no duty to control the conduct of a third party to prevent harm to others. The Court noted that a special relationship may exist with persons in charge of one with dangerous propensities or persons having custody of another. Whether such a "special relationship" existed between a parole office and his parolee and, if so, whether a duty to warn was triggered, were the issues before the Court.

Concerning the "special relationship" issue, the Court recognized that it had only imposed a duty to control the conduct of third persons in situations that involved dangerous persons in a custodial setting, and relied on the Boulanger case for the following:

[W]e have previously rejected application of the theory to create a duty on the part of a psychiatrist to control a patient or warn others of his or her dangerous propensities, finding no special relationship.

The Court then concluded that a special relationship did not exist between the parole officer and parolee; thus no duty was imposed on the parole officer to control the parolee's conduct to prevent him from causing harm to other person. However, the Court continued, even if a special relationship were recognized, the issue of whether the duty to control extended to a duty to warn potential victims would need to be resolved. In addressing this issue, the Court emphasized the importance of remembering that the present case did not involve a situation where any specific threat of harm had been directed against any certain individual or ascertainable group. After reviewing prior "special relationship" duty to warn cases under section 315 of the Restatement, the Court held:

[E]ven if a special relationship existed to control the conduct of [the parolee], the Kansas Department of Corrections and [the parole officer] owed no duty under section 315 to warn [the female co-employee] about [the parolee's] dangerous propensities in the absence of an express threat.

* * *

A patient, diagnosed as a chronic schizophrenic, had been committed to Osawatomie State Hospital primarily based on a determination of dangerousness to himself due to poor judgment and poor impulse control. After about a month, he was granted a temporary off-grounds pass. Within the 24 hours prior to his pass, the patient had not exhibited any behavior that warranted revocation of the pass. While on pass and a passenger in his mother's car, the patient grabbed the steering wheel of the car, causing it to veer into the path of on-coming traffic. His mother was injured and the driver of the on-coming car was killed. The inevitable lawsuit followed, with the mother and surviving family of the on-coming car's driver claiming, in part, that the hospital, nurses and psychiatrist had a duty to control the patient and to prevent him from harming others, and that duty extended to a duty to warn.

On appeal, the Court applied the legal principle that as a general rule, in the absence of a "special relationship," there is no duty on an actor (i.e. hospital, nurses, psychiatrist) to control the conduct of a third party (i.e. patient) to prevent harm to others. Thus, for the hospital, nurses and/or psychiatrist to be liable, they must have had a duty to the mother and driver on the on-coming car to control the patient and prevent him from harming others. Was there any such duty? Somewhat evading that question and relying heavily on the rationale in the Schmidt case, the Court stated:

Even if this court found that a special relationship existed, the question of whether the duty to control extends to a duty to warn potential victims would remain. . . . In the case at hand, there is sufficient evidence that [the patient] never had dangerous propensities towards others, only toward himself. Thus, following the Schmidt holding, even if we determined that [the patient] did have dangerous propensities, the record provides no evidence of any express threat to [the mother] or [the driver of the on-coming car], or any threat at all.

In conclusion, the defendants [hospital, nurses and psychiatrist] did not have a special relationship with plaintiffs [the mother and the driver of the on-coming car], and thus, did not owe them a duty greater than the duty they owed the public at large.

* * * * *


In Tarasoff a patient had confided in his psychotherapist that he intended to kill his girlfriend. The therapist did not warn the young woman, and the patient carried out his stated intention. The therapist was held liable for breach of a duty to warn the girlfriend of the impending danger posed by the 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."

In the quarter century since the Tarasoff decision, a comparable factual scenario has not been presented to either of the Kansas appellate courts. Thus no "on point" case law has been established in Kansas. While the Kansas appellate courts have been presented with asserted failure to warn claims in varying situations, the courts have curtailed any proposed expansion of a Tarasoff doctrine. The courts have limited acknowledgment of a "special relationship" that may trigger a duty to warn to those relationships established in a custodial setting, such as a prison or an involuntary commitment setting. Even then, for a duty to warn to be imposed, a threat that poses a foreseeable danger to an identifiable person or persons must be expressed by the patient. Finally, a duty to warn is not imposed if the person is already aware of the danger.

That being said, it is important to note that in several of the decisions discussed, the Court was careful to leave the liability door open by indicating that duty to warn cases (as with all negligence cases) are fact specific. While the Court has not appeared inclined to expand a Tarasoff doctrine, it is not unreasonable to assume that in a comparable fact situation, the Court would adopt the Tarasoff reasoning as a basis for liability of a mental health therapist.

It appears to come down to this: If a therapist must choose between maintaining confidentiality or warning an identifiable person of an express threat of violence made by a patient, the therapist would be well served by choosing to protect that person's life. If there should be a subsequent lawsuit or complaint to the licensing board by the patient for failing to maintain confidentiality, it is difficult to imagine that the choice of saving a life would not be a valid defense. Conversely, if a patient's expression does not rise to the level of a specific threat of violence to an identifiable person, it appears that the therapist may maintain the confidential nature of the relationship without fear of a successful lawsuit based on breach of a duty to warn.


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