Branscomb v. RobertKennedyMed.Center

Filed 11/12/08 Branscomb v. Robert Kennedy Med. Center CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Lois A. Smaltz, Judge. Affirmed.

Law Offices of K. Christopher Ghahreman and Kyan Christopher Ghahreman for Plaintiff and Appellant.

La Follette, Johnson, De Haas, Fesler & Ames, John Aitelli, and David J. Ozeran for Defendants and Respondents.

introduction

Plaintiff Phillip Branscomb was a patient in a mental health facility when he was stabbed by another patient. Through his conservator, Margaretta Davis, he sued the facility, Robert F. Kennedy Medical Center, and also named as a defendant the Daughters of Charity Health System, which he alleged to be associated with the facility. We refer to both defendants collectively as RFK-MC. The trial court sustained without leave to amend a demurrer filed by RFK-MC to Branscombs first amended complaint, which alleged a claim for abuse of a dependent adult under Welfare and Institutions Code section 15600 et seq. Branscomb then filed a motion for reconsideration accompanied by a proposed second amended complaint which alleged a cause of action for negligence. The trial court denied the motion for reconsideration, and dismissed the action. On appeal, Branscomb contends the court erred by denying him leave to amend to allege a negligence claim as contained in his proposed second amended complaint. We affirm.

factual and procedural background

Sometime prior to October 8, 2004, Branscomb, who suffers from schizophrenia, voluntarily checked himself into RFK-MC. At all relevant times, Branscomb was a patient in the mental health wing at RFK-MC. Keith Edwards was also a patient in the mental health wing. On October 8, 2004, Edwards stabbed Branscomb in the neck with a sharp object, believed to be scissors, causing serious injuries.

On October 7, 2005, Branscomb, through his conservator, filed a complaint against Edwards and RFK-MC. The complaint contained causes of action against Edwards for assault and battery, negligence, and intentional infliction of emotional distress.[1] As against RFK-MC, the complaint contained one cause of action for abuse and neglect of a dependent adult. (Welf. & Inst. Code,  15600, et seq.) Branscomb alleged therein that RFK-MC had a duty to provide him with reasonable medical care, and with a reasonably safe environment while under its care, treatment, and supervision. Branscomb alleged RFK-MC wrongfully and negligently failed to monitor, control, and secure him and Edwards, and created a dangerous and hazardous environment. As a result of RFK-MCs failure to conduct an adequate security search of Edwards and to monitor him, he was able to stab Branscomb with a weapon.

RFK-MC filed a demurrer, contending the complaint failed to allege egregious misconduct, or authorization or ratification by a managing agent of RFK-MC, as required to state a cause of action for dependent adult abuse.

Branscomb responded by filing a first amended complaint, again attempting to state a cause of action against RFK-MC for dependent adult abuse. Branscomb added the allegations that RFK-MC had no policy or practice of regularly and thoroughly checking and searching patients, even violent ones such as EDWARDS, for weapons or devices that could be used as weapons. This was true, even though Defendants knew, or should have known, that some patients who came into the facility would be violent and potentially armed. [] Defendants . . . knew or should have known that EDWARDS was a particularly violent individual and was therefore a particular danger to some or all other patients at the subject facility. Despite this knowledge, Defendants made the conscious choice not to thoroughly (or even minimally) search EDWARDS and his belongings and at least

ensure that he [w]as not armed with a dangerous device. Defendants knew, or should have known that if EDWARDS was armed with something sharp (which he was), EDWARDS would pose a substantial and life-threatening danger to other patients at RFK-MC, such as the Plaintiff.

RFK-MC again filed a demurrer, on the same grounds as the demurrer to the original complaint. RFK-MC argued that Branscomb ha[d] not set forth what the defendants knew or should have known about EDWARDS that required them to search him or keep him away from other patients. RFK-MC asserted that [t]he cause of action, while constituting allegations of negligence, does not amount to the type of aggravated conduct necessary to maintain a cause of action for dependent adult abuse.

Branscomb filed opposition to the demurrer, asserting that when Edwards was admitted, the staff there knew or should have known that Edwards was a danger to others based on the fact that his commitment was involuntary. When Edwards was admitted to RFK-MC, he was carrying on his person at least two (2) pairs of scissors. Inexplicably, the staff at RFK-MC failed to search Edwards at all to determine whether he possessed any dangerous objects or weapons. While this assertion was made in Branscombs opposition, at no time has he alleged in any of his complaints that Edwards was carrying scissors on his person when he was admitted to RFK-MC.

At the hearing on the demurrer, the court indicated that its tentative ruling was to sustain the demurrer without leave to amend on the basis that Branscomb had not alleged that there had been previous instances when the hospital had failed to search patients and injuries resulted, such that the hospital was on notice that it should search its patients. Branscombs counsel requested leave to amend to plead a cause of action for negligence based on the same allegations in the first amended complaint. The court replied that even if it considered the matter a negligence case based on third party criminal conduct, there were no facts alleged to put the defendants on notice that they needed to take some other action, such as regularly and thoroughly searching patients. The court pointed out that Branscomb had not cited to any authority to support the assertion that, because RFK-MC treated people with psychiatric issues, that necessarily meant that in order to discharge its duty of care the hospital was required to search everybody. Branscombs counsel argued that obviously if somebody is involuntarily checked into a mental facility, we think that as a matter of common sense, a person should be checked for weapons because there are going to be wolves among the sheep, so to speak. The court noted that counsel had not alleged, for example, that the hospital involved was a lock-down facility where police agencies brought people because they needed to be restrained. In the absence of any allegations of such facts, the court concluded that the complaint did not state a cause of action for negligence based on breach of a duty to search patients. The court concluded that the facts alleged did not support a negligence cause of action, and there was no indication Branscomb could amend to state a negligence cause of action. The court sustained without leave to amend the demurrer to the first amended complaint.

RFK-MC filed a motion to dismiss the matter. However, Branscomb filed a motion for reconsideration of the courts ruling, accompanied by a proposed second amended complaint containing a single cause of action for negligence.

In the proposed second amended complaint, Branscomb again alleged that Defendants knew, or should have known, that some patients who came into the facility would be violent and potentially armed. In addition, he alleged that [On] past occasions, prior to the attack on Plaintiff, some patients who would come into RFK-MC were in fact violent or had violent tendencies. [] On the basis of prior experience of mental health facilities (including RFK-MC), individuals who are involuntarily committed to mental health facilities tend to be more violent and/or pose a greater potential danger to other patients and staff than those individuals who are voluntarily admitted. Because EDWARDS was involuntarily committed to RFK-MC, Defendants, and each of them, knew or should have known that EDWARDS was an individual whom hospital staff needed to monitor particularly closely to assure that he would not be a danger to defenseless fellow-patients at RFK-MC.

Branscomb repeated the allegation that Despite this knowledge of a need to closely monitor EDWARDS, Defendants made the conscious choice to not thoroughly (or even minimally) search EDWARDS and his belongings and at least ensure that he [w]as not armed with a dangerous device. Defendants knew, or should have known that if EDWARDS was armed with something sharp (which he was), EDWARDS would pose a substantial and life-threatening danger to other patients at RFK-MC, such as the Plaintiff. Branscomb alleged that in failing to search and properly monitor Edwards, RFK-MC created a substantially dangerous and hazardous environment. Furthermore, the outcome that a patient like Plaintiff would be injured due to violent acts of EDWARDS was entirely predictable and foreseeable to Defendants at the relevant time. The burden on the Defendants at the time to search and secure EDWARDS was relatively small and the risk that EDWARDS would severely injure or kill a fellow patient was great enough so that a failure to properly search and/or segregate EDWARDS amounted to negligence, gross-negligence and/or recklessness and a deliberate disregard of the high degree of probability that EDWARDS would cause a violent injury to another patient.

RFK-MC filed opposition to the motion for reconsideration, arguing that no new or different facts were set forth in the second amended complaint that would justify reconsideration.

At a hearing on March 15, 2007, the trial court denied the motion for reconsideration, and granted RFK-MCs motion to dismiss the action. In its minute order, the court pointed out that it had previously rejected Plaintiffs argument that the First Amended Complaint was sufficient to sustain a claim based on medical negligence. On these same facts, the Second Amended Complaint adds only the legal conclusions that Defendants failure to prevent third party criminal conduct constitutes medical negligence simply because some patients are involuntarily committed to Defendants medical facility. Plaintiff has added no factual allegations to support Defendants liability for third party criminal conduct. During the hearing, the court also noted that the complaint failed to allege how and when Edwards acquired the scissors. The court stated that there is no authority for the position that a hospital owes a legal duty, because some patients come in by involuntary commitment, to constantly search and monitor every patient to ensure they have no access to sharp objects such as scissors, which commonly exist in a hospital. The court concluded that the proposed complaint lacked any factual allegations of prior conduct that would put RFK-MC on notice. The statement that on past occasions some patients were violent or had violent tendencies was merely a vague conclusion, and not a sufficient factual allegation sufficient to establish a legal duty.

Branscomb appeals from the judgment of dismissal.

discussion

In his opening brief on appeal, Branscomb does not contend that the trial court erred by sustaining without leave to amend the demurrer to the first amended complaint on the ground that it failed to state a cause of action for abuse of a dependent adult pursuant to Welfare and Institutions Code section 15600 et seq. He argues only that the trial court abused its discretion in not granting leave to amend to allege a cause of action for negligence as contained in his proposed second amended complaint. We disagree.

The Applicable Legal Standards and the Standard of Review

A demurrer tests the sufficiency of the plaintiffs complaint, i.e., whether it states facts sufficient to constitute a cause of action upon which relief may be based. (Code Civ. Proc.,  430.10, subd. (e); Friedland v. City of Long Beach (1998) 62 Cal.App.4th 835, 841-842.) For purposes of assessing the sufficiency of the demurrer, the court assumes the truth of all well-pleaded facts, and treats as having been pled relevant matters that properly are the subject of judicial notice. (Hirsch v. Bank of America (2003) 107 Cal.App.4th 708, 716; Thaler v. Household Finance Corp. (2000) 80 Cal.App.4th 1093, 1098-1099.)

In reviewing an order sustaining a demurrer, we independently review the complaint to determine whether the facts alleged state a cause of action under any possible legal theory. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.) We must give the complaint a reasonable interpretation, treat[ing] the demurrer as admitting all material facts properly pleaded. (Ibid.) If the plaintiff demonstrates a reasonable possibility the complaint can be cured by amendment, it is an abuse of discretion for the trial court to sustain the demurrer without leave to amend. (Ibid.)

The existence of a duty, sufficient to impose liability in a negligence claim, is a question of law, which we review de novo. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674; Kockelman v. Segal (1998) 61 Cal.App.4th 491, 499.)

Duty and Foreseeability

It is a fundamental principle of tort law that defendants are liable for injuries caused by their failure to exercise reasonable care. (Civ. Code,  1714, subd. (a); Thompson v. County of Alameda (1980) 27 Cal.3d 741, 750; Rowland v. Christian (1968) 69 Cal.2d 108, 112-113.) (Myers v. Quesenberry (1983) 144 Cal.App.3d 888, 891.) However, 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. (Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 434 (Tarasoff).) [L]iability should be imposed for injury occasioned to another by his want of ordinary care or skill as expressed in section 1714 of the Civil Code. . . . [W]henever one person is by circumstances placed in such a position with regard to another . . . that if he did not use ordinary 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. (Ibid., quoting from Rowland v. Christian, supra, 69 Cal.2d 108.)

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 defendants conduct and the injury suffered, the moral blame attached to the defendants conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences 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 foreseeability. As a general principle, a defendant owes a duty of care to all persons who are foreseeably endangered by his conduct, with respect to all risks which make the conduct unreasonably dangerous. [Citations.] (Tarasoff, supra, 17 Cal.3d at pp. 434-435, fn. omitted.)

Here, the purported duty owed by RFK-MC involved protecting Branscomb from physical attack by Edwards. Before we discuss the critical issue whether the attack was foreseeable, we first note that [u]nder traditional tort law principles, a person is not ordinarily liable for the actions of another and is under no duty to protect another person from harm. (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 293.) An affirmative duty to protect another from harm may arise, however, where a special relationship exists. [Citations.] Such a special relationship is typically where the plaintiff is particularly vulnerable and dependent upon the defendant who, correspondingly, has some control over the plaintiffs welfare. (Prosser & Keeton, Torts (5th ed.1984)  56, p. 374.) [T]he relationship between a therapist and his patient satisfies this requirement . . . . (Tarasoff v. Regents of the University of California[supra] 17 Cal.3d 425, 435; [citations]. (Kockelman v. Segal, supra, 61 Cal.App.4th at pp. 498-499; see also Myers v. Quesenberry, supra, 144 Cal.App.3d at pp. 891-892.) Indeed, RFK-MC had a special relationship with both Branscomb and Edwards here.

Courts have previously held that [where] a mentally ill patient was confined for care and treatment in the psychiatric ward of defendant hospital[,] the duty imposed by law on the hospital is that it must exercise such reasonable care toward a patient as his mental and physical condition, if known, require; the duty extends to safeguarding the patient from dangers due to mental incapacity; and where the hospital has notice or knowledge of facts from which it might reasonably be concluded that a patient would be likely to harm himself or others unless preclusive measures were taken, then the hospital must use reasonable care in the circumstances to prevent such harm. (Wood v. Samaritan Institution, Inc., [(1945)] 26 Cal.2d 847, 851.) (Vistica v. Presbyterian Hospital (1967) 67 Cal.2d 465, 469, italics added.) On the other hand, a private hospital is not an insurer of a patients safety, and the rules as to care required are limited by the rule that no one is required to guard against or take measures to avert that which a reasonable person under the circumstances would not anticipate as likely to happen. (Wood v. Samaritan Institution, Inc., supra, 26 Cal.2d at p. 852.)

As the trial court recognized, the crux of this case comes down to whether Branscombs proposed second amended complaint contained allegations demonstrating circumstances such that RFK-MC should have reasonably anticipated that Edwards was likely to attack another patient, and therefore should have taken steps to prevent such an attack by monitoring Edwards and searching him for potential weapons. The relevant allegations included that [on] past occasions, prior to the attack on Plaintiff, some patients who would come into RFK-MC were in fact violent or had violent tendencies. [] On the basis of prior experience of mental health facilities (including RFK-MC), individuals who are involuntarily committed to mental health facilities tend to be more violent and/or pose a greater potential danger to other patients and staff than those individuals who are voluntarily admitted. Because EDWARDS was involuntarily committed to RFK-MC, Defendants, and each of them, knew or should have known that EDWARDS was an individual whom hospital staff needed to monitor particularly closely to assure that he would not be a danger to defenseless fellow-patients at RFK-MC.

These allegations are insufficient to establish that the attack on Branscomb was foreseeable. The assertion that on prior occasions patients were violent or had violent tendencies is vague as to the prior conduct that allegedly occurred, and fails to allege that RFK-MC had reason to anticipate that a stabbing by one patient of another might occur. Similarly, the conjectural allegation that individuals who are involuntarily committed to mental health facilities tend to be more violent says nothing about RFK-MCs asserted prior knowledge of the actual risk that Edwards or any involuntarily committed patient posed. Other than the allegation that Edwards was involuntarily committed, there are no allegations that Edwards possessed any characteristics that would have forewarned RFK-MC that he was likely to attack another patient.

The vague allegations contained in the second amended complaint are not sufficient to allege that the attack by Edwards was highly foreseeable, or even moderately foreseeable. In examining whether the allegations establish the required foreseeability, we also consider the degree of foreseeability in relation to the burden imposed on defendants if a duty were imposed. In the context of discussing a landlords duty to provide protection from third party crime, our Supreme Court observed that the scope of the duty is determined in part by balancing the foreseeability of the harm against the burden of the duty to be imposed. [Citation.] [I]n cases where the burden of preventing future harm is great, a high degree of foreseeability may be required. [Citation.] On the other hand, in cases where there are strong policy reasons for preventing the harm, or the harm can be prevented by simple means, a lesser degree of foreseeability may be required. [Citation.] [Citation.] Or, as one appellate court has accurately explained, duty in such circumstances is determined by a balancing of foreseeability of the criminal acts against the burdensomeness, vagueness, and efficacy of the proposed security measures. [Citation.] (Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th at pp. 678-679.)

In concluding that Branscomb failed to allege that RFK-MC owed him a duty of care to prevent Edwards attack, we point out that the burden imposed on mental health facilities were we to find a duty under these circumstances would be considerable. As the trial court noted, the complaint does not allege when or how Edwards obtained the scissors. Presumably Branscomb suggests that a mental health facility should search all patients who are involuntarily committed not only upon their arrival, but on an ongoing basis thereafter. The adverse effect this could have on the therapeutic relationship is plain, as are the consequences for staffing considerations in mental health facilities.

In short, we conclude that the trial court did not abuse its discretion by denying Branscombs by not permitting him to file his proposed second amended complaint on the basis that he failed to state a cause of action for negligence. The bare allegations that RFK-MC had treated violent patients in the past, that involuntarily committed patients tend to be more violent, and that Edwards was such a patient, simply do not give rise to a duty on the part of RFK-MC to search Edwards for weapons, and to more closely monitor him to prevent his attacking other patients.

disposition

The judgment is affirmed. RFK-MC shall recover its costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, Acting P. J.

We concur:

MANELLA, J.

SUZUKAWA, J.

Publication courtesy of San Diego free legal advice.

Analysis and review provided by Santee Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

[1] Edwards is not a party to this appeal. The trial court dismissed the lawsuit as to Edwards in September 2006 based on failure to prosecute; the complaint was never served on Edwards.