Halfway Houses and Mental Health Treatment Facilities—Establishing Duty in Tort
Drug and alcohol recovery,1 and treatment for chronic mental health issues, many times involve a stay in some form of residential facility.2 Some of these facilities are pure halfway houses, and provide the individual with only a bed and access to support groups.3 Others, such as the well-known Betty Ford Centers, involve complex forms of therapy at a significant cost.4 Many other hybrid forms of residential facilities exist with some form of treatment being provided for the resident. Do these facilities have a duty in tort such that a claim lies in the event of either a resident’s self-inflicted injury or in the event of a resident’s infliction of injury to third parties? This article examines the various theories of liabilities in such circumstances and concludes that in most cases a jury question is involved.5
In attempting to establish liability, the practitioner must first examine the circumstances as to when mental health providers are not liable under extant law. At least one Florida court has held that a treating mental health provider has no duty to involuntarily hospitalize a patient such that if a patient who is being seen on an outpatient basis attempts suicide the psychiatrist is not liable.6 A Florida court has also affirmed a trial court’s dismissal of a medical malpractice claim brought by injured persons against a mental health center when a person the center treated on an outpatient basis shot and injured two persons.7 Thus, the examination of these cases begs the question of whether the mere fact of residency in a facility is sufficient to establish a duty of care.
Not surprisingly, at least two Florida courts have held that mere residency is not enough. In Lighthouse Mission of Orlando v. McGowen, 683 So. 2d 1086 (Fla. 5th DCA 1996), the appellate court reversed a plaintiff’s judgment against a residential facility obtained after one of its residents with a history of sexual crimes raped and murdered a neighbor of the mission. The appellate court ruled that no duty of care existed as the mission had only a landlord/tenant relationship with the resident who “could leave at will.” The critical facts obtained during discovery in McGowen was that the resident in McGowen had “no restraints on his liberty. . . [and] lived at the [m]ission as a tenant.”8 The case apparently turned on the factual predicate of the total absence of control.
Similarly, in Metro Dade County v. Dubon, 780 So. 2d 328 (Fla. 3d DCA 2001), a homeless shelter was found not to have liability to the plaintiff who had been stabbed by another resident while residing at the shelter. Although the shelter did have rules and regulations to maintain order (which are not stated in the opinion), the residents at the shelter “were free to come and go as they pleased.” Like McGowen, the plaintiff failed to establish that the shelter had any control over the resident.
The plaintiff must, therefore, be mindful of this case law and seek to sufficiently discover facts that trigger the applicable tort principles relative to liability. It is also important to query whether the above-referenced cases sufficiently examine the underpinning tort principles involved. As stated by the Florida Supreme Court, the “minimal threshold legal requirement” to bring an action for negligence in Florida requires that defendant’s alleged actions “created a foreseeable ‘zone of risk’ in harming others.” Kitchen v. K-Mart Corp. 697 So. 2d 1200 (Fla. 1997).9 Consequently, the paradigm, pursuant to the authority of Kitchen, is that the failure to properly run a facility providing mental health treatment in some form creates an action for negligence when harm results from an action or inaction that created the risk of harm. More specifically, under the standard of law expressed in Kitchen, the zone of foreseeable risk is arguably created when a treatment facility either enforces policies, or fails to enforce policies, or fails to have policies, and the failure causes harm to its residents or to third-parties that is foreseeable. Obviously, a very broad duty is established by the authority in Kitchen.
It is also important to note that numerous cases stand for the proposition that under appropriate circumstances a person has a duty to protect others’ self-inflicted injuries.10 For example, in White v. Whiddon, 670 So. 2d 131 (Fla. 1st DCA 1996), the parents of a teenager who “had been having serious emotional problems” called the sheriff’s office to transport their son to a mental health facility for treatment. The teenager was handcuffed and placed in the back of the patrol car. After doing so, the sheriff’s deputy left the boy alone in his car and went back to the house to talk to the parents “for less than one minute.” The boy slipped his handcuffed hands to the front of his body, reached through a several inch gap in the protective cage that separated the back and front seats of the patrol car, took the deputy’s shotgun from its “unlocked position,” and committed suicide.
The boys’ parents sued the installer of the screen, the manufacturer of the screen and the sheriff himself. The installer asserted that it had no duty to the detainee as it had no “control” over the detainee and that no proximate cause existed as the suicide was not foreseeable. The trial court granted summary judgment to the installer.
On appeal, the appellate court reversed the trial court’s summary judgment. In reversing, the White court noted that summary judgment should only be entered in negligence actions with “particular caution.” The White court ruled that the issue of duty was incorrectly decided by the trial court given that the trial court failed to consider whether the defendant installer’s conduct foreseeably created a broader “zone of risk” that posed a general threat of harm to others. Such a risk of harm was created by the improper installation of the cage as it created an illusion of security that created a foreseeable risk to detainees. Analogizing to residential facilities, such facilities foreseeably create risk to persons residing therein if their actions or inactions cause harm to the resident or third parties.
Turning more directly to treatment facilities, these legal principles that predicate liability are found in the seminal case of Nova University, Inc. v. Wagner, 491 So. 2d 1116 (Fla. 1986). In Wagner, the Florida Supreme Court affirmed the district court of appeal’s reversal of a summary judgment granted to a residential treatment facility in a tort action. Nova University ran a residential rehabilitation program that accepted for residence children with severe behavior problems. The children attended public schools, but were otherwise precluded from leaving Nova University. No security measures, however, existed to enforce the policy. Two of the resident children exhibited a tendency towards physical violence and had, in the past, injured other younger children. The children ultimately ran away from the center and killed one child and permanently injured another child.
The trial court granted summary judgment to Nova University on the basis that it had no duty to exercise control over the resident children. The district court of appeal reversed and the Florida Supreme Court affirmed. In so ruling, the Florida Supreme Court noted that Nova University “for a fee. . . undertakes to rehabilitate children with emotional and behavior problems.” As a consequence, the Florida Supreme Court ruled that it is not “too onerous a burden to place upon it the duty to exercise reasonable care in carrying out its efforts.”11
Similarly, in Garrison Retirement Home Corp. v. Hancock, 484 So. 2d 1257 (Fla. 4th DCA 1985), the plaintiffs sued a retirement home for injuries suffered when a resident of the retirement home struck one of the plaintiffs with his vehicle. The resident at issue was a physically infirm resident in excess of 85 years of age when he came to live in the home. When the resident came to live in the retirement home, the resident’s vehicle was towed to the home and parked at the premises. The resident was believed “to be a dangerous person,” and had “rage reaction” and “hallucinatory periods.” As a result, the administrator of the home became very concerned about the resident’s use of the vehicle, but believed that she legally had no right to prevent the resident’s use of the vehicle.
As a consequence of the administrator’s concerns, the retirement home took elaborate informal steps to prevent the resident from using the vehicle, such as letting the air out of the resident’s tires, removing the battery cable to the vehicle, confiscating the resident’s keys, and barricading the car with other cars. The resident, however, persisted and was allowed use of his car on the occasion in question and immediately backed into the administrator’s vehicle. While the administrator was attending to her vehicle, the resident left in his own vehicle and, upon returning, struck the plaintiff, causing injuries.
The trial court granted summary judgment for plaintiffs (the injured plaintiff and his wife) and the home appealed. The appellate court affirmed entry of summary judgment as to duty as it ruled that the retirement home owed the worker “a duty to eliminate a known danger on the property or at least to warn him of the dangerous condition.” 484 So. 2d at 1262. “[H]aving assumed and undertaken the care and supervision of [the resident, the retirement home] owed [the plaintiff] a duty to exercise reasonable care in the supervision of [the resident’s] activities as a resident of the retirement home.” Id. The appellate court ruled that “[o]n this record, it appears to us that [the retirement home] owed a duty to [the resident] to [the plaintiff] and others to prevent [the resident] from operating his car in view of the knowledge it had regarding his driving capabilities.” Id. (emphasis added). The Garrison court, in so ruling, cited as authority for this proposition Restatement (Second) of Torts §§315-319 (1964) , which provide for a duty to control the conduct of a third person so as to prevent physical harm where a “special relationship” exists as in the relationships between a “parent-child, master-servant, land possessor and custodian of a person with dangerous propensities.” Id. at 1261. Therefore, the appellate court ruled that summary judgment was appropriately granted as to duty for the plaintiffs, but reversed only as to summary judgment as to liability, proximate cause, and other issues.
The argument a defendant may make is that the duty only arises when negligently undertaking to care for persons with known dangerous propensities (or “special relationships”), when the person is committed to the particular facility. The use of the word “commitment” implies that liability can only be premised in circumstances where the resident is locked up into a particular facility. This is an incorrect reading of Wagner, as in Wagner the program had “ [n]o security measures ” and residents had the freedom to leave the premises to “attend public schools.” (emphasis added). More accurately stated, the Florida Supreme Court, in Wagner, premised liability on Restatement (Second) of Torts §319 (1964). Section 319 provides as follows: “ One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.” Wagner, 491 So. 2d at 1118 (emphasis added).12
As Wagner made clear, one cannot voluntarily accept the charge of caring for a person and then complain about liability when the care is negligently performed and results in death or damage. This is especially true when one who voluntarily assumes such a responsibility creates a grossly negligent policy, such as precluding the use by residents of prescribed antidepressants, and this policy causes a death.
The express language of the Restatement of the Law of Torts is that the applicable standard is “taking charge” of a person. The word “commitment” is never used in §319 and “taking charge” cannot be said to only apply to a locked-down facility. As stated above, the Florida Supreme Court opinion in Wagner illustrates to the contrary. Moreover, as the American Heritage Dictionary and standard usage indicates, “charge” means “to entrust with a duty, responsibility, or obligation,” and “take charge” would therefore mean to accept such duty, responsibility or obligation.13 Numerous other Restatement sections exist on which liability can be separately premised due to a defendant voluntarily undertaking to care for a resident in a negligent fashion.14
Even if a particular defendant can be said not to have a duty arising from “taking charge” or from a “special relationship,” a particular defendant may have a duty arising from voluntary attempts to provide assistance or services to the resident. In Reidel v. Sheraton Bal Harbour Assoc., 806 So. 2d 530 (Fla. 3d DCA 2001), the appellate court reversed the denial of a deceased woman’s estate’s motion for directed verdict against a hotel where she had been residing at the time of her death.15 The woman had been a diabetic; the hotel undertook to provide her with a doctor for the treatment of her symptoms and the doctor’s negligent medical advice caused her death when he prescribed medication that was contraindicated for diabetics. A background investigation of the medical referral service that provided the referral would have indicated that the service had extremely inadequate credentials and the doctor himself had only a temporary license to practice in Florida. Id.
The appellate court ruled that although the hotel “initially had no obligation to provide [the woman] with medical assistance, once it undertook this task, it had a duty to exercise reasonable care.” Id. at 532 (emphasis added).16 & #x201c;[T]he trial. . . courts cannot find a lack of duty if a foreseeable zone of risk more likely than not was created by the defendant.”17
Thus, as the foregoing demonstrates, at least three legal theories exist as a legal predicate to liability: 1) a special relationship; 2) taking charge of a person with known dangerous propensities; and 3) the voluntary assumption of a duty. The types of actions or omissions which may be factual predicate to liability are: 1) a policy prohibiting residents from taking drugs prescribed by physicians unconnected with the facility; 2) isolation of residents from family under the premise that the family members might be enablers which results in depression of the patient; 3) monitoring the behavior and mental states of residents but failing to take necessary action when the behavior of the residents becomes abnormal such as in the event of paranoia, delusions, psychosis, clinical depression, or suicidal behavior; 4) providing inadequate mental health treatment; 5) ignoring violent histories or actions of residents; 6) providing access to weapons; 7) failing to secure the facility such that the resident is able to escape, etc. In summary, residential facilities have a duty to their residents to perform their duties such that the residents are not injured and those injured by negligent actions or inactions have recourse through an action for damages and a trial by jury. Diligent discovery is the key to establishing a factual predicate that triggers the applicable case law that provides for liability.
1 For ease of reference, those recovering from alcohol and drug addictions will be referred to collectively as addicts herein.
2 See Alcoholics Anonymous xxvi (4th ed. 2001) (stating “we favor hospitalization for the alcoholic who is very jittery or befogged. . . it is imperative that a man’s [or woman’s] brain be cleared before he is approached [about recovery] as he [or she] has then a better chance of understanding and accepting what we have to offer [through Alcoholics Anonymous].”)
3 Most notably, Alcoholics Anonymous meetings.
4 The length of stay at the Betty Ford Center varies upon individual circumstances and can cost from $16,500 to in excess of $27,000, without consideration of the cost of medication. See www.bettyfordcenter.com.
5 Some might cynically classify the establishment of a duty in this instance under the heading of “no good deed goes unpunished.” In the event of damage, the preliminary inquiry is whether or not a duty exists. If the circumstances justify a duty under the law, it is certainly not too much to ask from a societal perspective for the duty undertaken to be performed without negligence. Those opposing such a duty run the risk of overturning decades (if not centuries of jurisprudence) and further the goal of self-insurance. Those without the economic means to self-insure suffer the consequences of such a system. Our system of jurisprudence guarantees the right to trial by jury and whether liability is to be imposed is best left to the jury to examine the circumstances and determine the reasonable result. See Fla. Const . art. I, §22 (“[t]he right of trial by jury shall be secure to all and remain inviolate”).
6 See Paddock v. Chacko , 522 So. 2d 410 (Fla. 5th D.C.A. 1988). In this instance, it must be noted that the psychiatrist at issue recommended hospitalization and the recommendation was not followed.
7 Santa Cruz v. N.W. Dade Cmty. Health Ctr., 590 So. 2d 444 (Fla. 3d D.C.A. 1991). The court ruled that no duty would have been owed to the injured plaintiffs even if the hospital knew the fact that the shooter had previously been committed to another hospital and had escaped.
8 The only “rules of the house” were nominal ones that did not materially control behavior such as a curfew, required church attendance, and appropriate dress.
9 Under Florida law, the risk of danger is sufficiently inherent in firearms sufficient to create a zone of risk such that an action for negligence will lie if a firearm is sold to an intoxicated person. Consequently, a legal duty “arise[s] whenever a human endeavor creates a generalized and foreseeable risk of harming others.” Id. at 1202 ( citing McCain v. Fla. Power Corp ., 593 So. 2d 500, 502 (Fla. 1992)).
10 S ee Schmelz v. Sheriff of Monroe County , 624 So. 2d 298 (Fla. 3d D.C.A. 1993) (reversing summary judgment in a suicide case and stating that it is a jury question as to whether the sheriff was liable for the suicide of arrestee; although arrestee had never threatened suicide, the booking officer had believed that arrestee looked depressed and had placed him on a suicide watch and the suicide watch negligently performed; Robison by and through Bugera v. Faine, 525 So. 2d 903 ( Fla. 3d D.C.A. 1987) (affirming jury verdict against hospital where suicidal, psychiatric patient left unattended suffered serious injuries as a result of fall from tree when patient who left hospital through emergency exit attempted to reenter hospital; damages premised on negligent care); North Miami General Hospital v. Krakower , 393 So. 2d 57 (Fla. 3d D.C.A. 1981) (finding evidence supported liability of hospital for negligence in failing to properly supervise suicidal patient who jumped to his death while being supervised by attendant who was “not informed of the patient’s suicidal tendencies”).
11 Wagner, 491 So. 2d at 1118 (citing Restatement (Second) of Torts §319 (1964)); see also Union Park Memorial Chapel v. Hutt , 670 So. 2d 64 (Fla. 1996) (finding one who voluntarily undertakes to do something he has no obligation to perform is liable for failure to use due care if the act is performed negligently).
12 See also Restatement (Second) of Torts §315 (1964) (stating that one is under a duty to control the conduct of a third person when a “special relationship” exists).
13 American Heritage Dictionary 259 (2d Coll. Ed. 1985).
14 See Restatement (Second) of Torts §314(A) (1964) (stating that one who takes the custody of another under circumstances to deprive the other of his normal opportunities for protection is under a duty to take reasonable action); Restatement (Second) of Torts §320 (1964) (stating that one who acts and thereby creates an unreasonable risk of harm to another is under a duty to exercise reasonable care to prevent that risk from taking effect, e.g. , one who drives to a putting green after seeing no one in sight is under a duty to shout a warning to someone who suddenly appears in path of ball); Restatement (Second) of Torts §322 (1964) (stating that one is under a duty to protect another from harm caused by his conduct whether or not his conduct is tortious or innocent if the actor’s conduct has made the other helpless and in danger of further harm, e.g ., if driver hits a third party walking by the side of the road, the driver is responsible for any damage to such person caused by a third party’s car hitting such person unless the driver protects such person from future harm); Restatement (Second) of Torts §324 (1964) (stating that one who takes charge of a person who is helpless has duty to prevent harm to such person); Restatement (Second) of Torts §324A (1964) (one who undertakes, gratuitously or otherwise, to render services to another is subject to liability for harm if such person either increases the risk of harm or otherwise fails to exercise reasonable care).
15 See also Sanderson v. Eckerd Corp. , 780 So. 2d 930 (Fla. 5th D.C.A. 2001) (stating that a pharmacist who promises to detect and warn customers of adverse drug reactions is liable if his performance is negligent, as a voluntary undertaking exists); Union Park Memorial Chapel v. Hutt , 670 So. 2d 64 (Fla. 1996) (finding that a funeral director who voluntarily undertakes to control traffic is liable if he does so negligently and damage results).
16 See also Restatement (Second) of Torts (1964).
17 Citing McCain v. Florida Power Corp. , 593 So. 2d 500 (Fla. 1992).
Mark A. Sessums is a shareholder in the law firm of Frost Tamayo Sessums & Aranda, P.A. He is a trial lawyer and practices in all areas of complex litigation, including personal injury and wrongful death. Mr. Sessums is Florida Bar board certified in marital and family law and is a fellow in the American Academy of Matrimonial Lawyers. He received his J.D., with honors, from the University of Florida School of Law.
Robert S. Swaine is an associate in the law firm of Frost Tamayo Sessums & Aranda, P.A. He is a trial lawyer and practices in all areas of complex litigation, including personal injury and wrongful death. Mr. Swaine serves on The Florida Bar Probate and Trust Law Litigation Committee. He received his J.D., with honors, from Florida State University School of Law.
This column is submitted on behalf of the Trial Lawyers Section, Dominic M. Caparello, chair, and Thomas P. Barber, editor.
