Appeal by defendant from order entered 4 September 1998 by
Judge Wade Barber in Superior Court, Orange County, and from
judgment entered 7 October 1998 and order entered 31 March 1999 by
Judge James C. Spencer, Jr. in Superior Court, Orange County.
Heard in the Court of Appeals 17 April 2000.
Smith, James, Rowlett & Cohen, L.L.P., by Seth R. Cohen, and
Gordon & Nesbit, P.L.L.C., by L. G. Gordon, Jr., for
plaintiff-appellee.
Pipkin, Knott, Clark & Berger, L.L.P., by Bruce W. Berger, and
Smith, Helms, Mulliss & Moore, L.L.P., by James G. Exum, Jr.,Matthew W. Sawchak and Hampton Y. Dellinger, for defendant-appellant.<
br>
Kilpatrick Stockton, L.L.P., by Noah H. Huffstetler, III, for
North Carolina Psychiatric Association, American Psychiatric
Association, American Medical Association, North Carolina
Medical Society, North Carolina Psychological Association,
North Carolina Hospital Association and American Psychological
Association, amici curiae.
TIMMONS-GOODSON, Judge.
This case arises out of the tragic events of 26 January 1995,
when Wendell Williamson (“plaintiff”) shot and killed two people in
downtown Chapel Hill, North Carolina. Plaintiff brought suit
against Myron B. Liptzin (“defendant”), a psychiatrist at Student
Psychological Services of the University of North Carolina at
Chapel Hill (“Student Services”) who treated plaintiff, on the
grounds that he was damaged by the negligence of defendant.
The evidence presented at trial tended to show the following.
Student Services operates only on a voluntary, outpatient basis.
In May 1990, as an undergraduate student, plaintiff visited Student
Services as a “walk-in,” and received counseling for relationship
issues and academic problems. The doctor who reviewed plaintiff's
intake form concluded that plaintiff's problems were “fairly
normative.”
In September 1992, when plaintiff was a twenty-four-year-old
law student at the University of North Carolina at Chapel Hill
(“UNC”), he screamed at students on campus and struck himself aboutthe face. Plaintiff was referred to Student Services. As a
result, Student Services further referred him to the UNC Hospitals,
where he was involuntarily committed. During his stay, plaintiff
disclosed that he had been hearing a voice talking to him for eight
months and that he believed he was telepathic. The hospital staff
recorded that plaintiff possessed a gun in his apartment.
Plaintiff refused to voluntarily remain at the hospital and
also refused medication. A court petition was filed to have
plaintiff involuntarily committed. Following a commitment hearing,
the presiding judge denied the petition and recommended that
plaintiff seek out-patient psychiatric counseling. The final
primary diagnosis was “rule/out schizophrenia.” One of plaintiff's
expert psychiatrists explained at trial that the term “rule/out
schizophrenia” means that either: (a) “it's [schizophrenia] untilproven otherwise, but we haven't had enough time to prove otherw
ise
yet[,]” or (b) “you should keep [schizophrenia] first and foremost
in your mind until a less serious condition is shown to be causing
the problem.”
On 2 March 1994, plaintiff was again referred to Student
Services after he disrupted class at the law school by announcing
that he was a “telepath.” Plaintiff completed an intake form on
which he denied any urge “to hit, injure or harm someone” or any
“[s]uicidal thoughts or concerns.” Intake psychologists assessed
that involuntary hospitalization was “not appropriate as student
denies danger to self or others.” Plaintiff was again diagnosed
with “rule/o[ut] schizophrenia.” The staff recommended treatment
and medication, which plaintiff refused. However, after a law
school dean informed plaintiff that he might not be recommended as
a candidate for the bar exam unless he received counseling,
plaintiff agreed to seek treatment.
During a ten-week period beginning on 8 March 1994, plaintiff
had six counseling sessions with defendant at Student Services,
each of which lasted between twenty minutes and one hour.
Defendant prepared for the treatment by reviewing plaintiff's chart
from Student Services, which included an intake form from
plaintiff's May 1990 visit to Student Services and a “discharge
summary” from his 1992 hospital stay. However, defendant did not
review the complete medical records from plaintiff's 1992
treatment. During the first session with defendant, plaintiff
stated that he had believed he was a “telepath” for two years, heconsumed approximately six beers each night, and he used marijua
na
occasionally. Defendant suggested that plaintiff begin taking an
antipsychotic drug, Navane, and diagnosed plaintiff with
“delusional disorder grandiose.” While defendant recognized that
plaintiff exhibited some symptoms of schizophrenia, he decided to
record the more “generous” diagnosis, so as not to deprive
plaintiff of the opportunity to practice law.
On 5 April 1994, during the fourth counseling session,
defendant informed plaintiff that defendant would be leaving
Student Services in June, and suggested that plaintiff “consider
the possibility of seeing somebody on a regular basis in therapy,
and that [defendant] would be happy to make a referral for him;
that it would probably make sense to do this sooner rather than
later.”
The last counseling session between plaintiff and defendant
occurred on 25 May 1994. Plaintiff informed defendant that he was
not sure whether he would stay in Chapel Hill for the summer or
whether he would stay with his family in Clyde, North Carolina.
Defendant recorded in plaintiff's medical chart that plaintiff knew
defendant would be leaving Student Services and that plaintiff
would be seeing his replacement in the fall semester. Defendant
told plaintiff that he needed to contact defendant's replacement so
that he could have his prescriptions filled.
During plaintiff's final counseling session, defendant
supplied plaintiff with a prescription for thirty Navane capsules.
Defendant recorded that plaintiff was “content to stay on[Navane].” As plaintiff's plans for the summer were uncertain,
defendant instructed plaintiff that if he returned to Clyde, he was
to visit the community health center or see his family doctor. If,
on the other hand, plaintiff remained in Chapel Hill, he was to
return to Student Services for counseling with defendant's
replacement.
During the course of his treatment, plaintiff followed
virtually all of defendant's instructions concerning the regularity
with which he was to take his medication. Plaintiff testified that
he did on one occasion “voluntarily [go] off his medication,” but
reported it to defendant. Plaintiff reported that he was no longer
hearing voices, his “telepathy” and delusions were completely gone,
and his hallucinations were either completely gone or virtually
gone. Although he still used alcohol and recreational drugs, his
usage had decreased. Plaintiff attended all of his classes without
incident, sat for his law school exams, improved his grades, and
took part in a law school writing competition. Friends reported
that plaintiff was “more 'like his old self.'” While he was under
defendant's care, plaintiff had no thoughts of harming or killing
himself or anyone else. His first thoughts of harming others
occurred “much later” or “some number of months” after he last saw
defendant.
Plaintiff believed that his mental illness was temporary and
that the medication was a short-term measure. According to
plaintiff, defendant told him “that in his opinion, [plaintiff] was
probably not really schizophrenic or psychotic.” Plaintiff furtherstated that defendant told him that “if someday [he] wanted to
go
off the medication, that [he] could do that if [he] told someone
[he] trust[ed].”
Plaintiff spent the summer at his parents' home in Clyde. He
did not visit the community health center or Student Services.
Plaintiff decided to stop taking Navane for a few days, as the drug
made him susceptible to the sun and he had become sunburned. After
he discontinued his medication, plaintiff felt physically better.
He determined that he would stop taking his medication indefinitely
and informed his parents of that decision.
Plaintiff returned to Chapel Hill in August 1994 for the fall
semester. He attended virtually all of his classes and did not
disrupt any of them. He passed all of his courses, managed his
finances, and took care of his day-to-day needs, such as grooming,
eating, and shopping. He took trips alone in his car, including
trips to Connecticut and New York City over Christmas break.
In January 1995, plaintiff returned to Chapel Hill and began
living out of his car. He stopped attending classes and purchased
guns and ammunition. In addition, plaintiff returned to Clyde to
retrieve a M-1 rifle, the gun UNC Hospital staff noted he
possessed. This weapon had been in Clyde since plaintiff's
hospital stay in 1992. On 26 January 1995, eight months after his
last session with defendant, plaintiff randomly fired the M-1 rifle
at unarmed people in downtown Chapel Hill, killing two of them.
In an effort to stop plaintiff, police officers shot him in the
legs. Plaintiff required surgery for the leg wounds. Plaintiffwas charged with two counts of first-degree murder. In November
1995, he was found not guilty by reason of insanity.
Psychiatrist Stephen Kramer (“Dr. Kramer”) testified as an
expert witness on behalf of plaintiff. Dr. Kramer stated that
defendant violated the standard of care for a psychiatrist with
similar training and experience practicing in Chapel Hill, North
Carolina, or similar communities, in 1994. Dr. Kramer specified
that defendant failed “to pursue a proper diagnosis, including
review of old records available and assessing risk for potential
deterioration and violence[,]” failed “to develop a program for
continuing care [for plaintiff] once [defendant] retired and left
the Student Health Center,” failed to address the issue of
noncompliance, and failed to properly manage the use of
antipsychotic medication. Dr. Kramer noted that the discharge
summary from plaintiff's hospital stay indicated that he had no
insight into his illness and that he had a history of
noncompliance. Dr. Kramer stated that especially in this context,
if defendant advised plaintiff that he could go off his medication
if he told a responsible adult, such advice would have been
improper and an “invitation to not comply with the recommended
therapy.”
According to Dr. Kramer, the correct diagnosis was chronic
paranoid schizophrenia rather than delusional disorder grandiose,
and defendant's failure to review the medical records from
plaintiff's inpatient stay at UNC Hospitals in 1992 contributed to
the misdiagnosis. Dr. Kramer further noted that there was a markeddifference between plaintiff's diagnosis of delusional disorder and
schizophrenia. Dr. Kramer explained that schizophrenia is a long-
term, lifelong illness requiring long-term care, while delusional
disorder was more intermittent in nature.
Dr. Kramer testified that it was “harder to answer” whether
defendant could have reasonably foreseen that plaintiff would
become violent to himself or others. Dr. Kramer further testified:
First was, what's foreseeable is
noncompliance with treatment, which would
directly lead to exacerbation or increase in
the psychotic symptoms, especially that of his
thought processes. His insight and judgment
would remain poor or get worse. He would
continue abusing substances . . . . That
access to a gun might not be cut off for him
but might be reunited with him, and that
dangerous behavior might occur.
Those elements regarding dangerousness
may come together at a point in time.
When asked whether he was “prepared to say . . . a part of
foreseeability would be dangerousness . . . to himself or
others[,]” Dr. Kramer answered, “I'm not sure that I can go that
far with it. I can say that the foreseeable elements are those
that when they come together in time would lead to dangerousness.”
Had plaintiff received a proper diagnosis and treatment, his
delusions and acting out could have been kept under control,
according to Dr. Kramer.
James Bellard (“Dr. Bellard”), a psychiatrist, also testified
as an expert witness on behalf of plaintiff. Dr. Bellard agreed
that defendant violated the applicable standard of care by
misdiagnosing plaintiff and failing to ensure that plaintiff
received ongoing care, especially given plaintiff's history ofnoncompliance. Dr. Bellard stated that it was foreseeable that
plaintiff would again believe he was a “telepath.” When asked
where that would lead, Dr. Bellard answered, “If I may, that's not
what's foreseeable. What's foreseeable is that he would believe
[he was a “telepath”] again. But what he would do with that, I
don't think -- nobody's crystal ball is that good, that they could
predict that.” Dr. Bellard further stated that if defendant had
given plaintiff the name of a specific doctor to visit during the
summer of 1994, Dr. Bellard still could not predict what would have
happened. Dr. Bellard stated that “it was foreseeable that
[plaintiff] would deteriorate and eventually decompensate, that he
would really fall apart mentally, eventually.” Once he began to
deteriorate, plaintiff would certainly become dangerous to himself,
according to Dr. Bellard. Both Drs. Kramer and Bellard
acknowledged that plaintiff improved under defendant's care and
stated that plaintiff made no expressions of violence and was not
committable at any point during his treatment.
Psychologist John Warren, III (“Dr. Warren”) testified on
behalf of plaintiff as an expert witness in psychology and the
treatment of paranoid schizophrenia. Dr. Warren stated that
plaintiff was not competent to take charge of his medical treatment
at the time his therapy with defendant ended. Dr. Warren testified
that
there's nothing in the record that suggests
that [plaintiff] got that information that he
needed in order to make decisions about
whether or not he had a major mental illness,
whether or not he needed to take medication on
a long-term basis, what he needed to do incase the symptoms got worse.
Plaintiff reported to Dr. Warren on the day following the shootings
that defendant had advised him that he could discontinue his
medication if he told someone he trusted.
Concerning schizophrenia, Dr. Warren echoed the testimony of
Dr. Kramer stating that it was a very serious, major mental
disorder, requiring lifelong treatment. Dr. Warren also testified
that “[a]s a group, people with schizophrenia, paranoid type, are
among the most likely to hurt themselves or hurt other people.”
Dr. Warren believed that because plaintiff did not understand the
seriousness of his illness, he could not make competent decisions
concerning treatment.
When asked whether it was foreseeable that defendant “might”
degenerate and become dangerous to himself or others, Dr. Warren
responded by stating that plaintiff would become sicker, which
“might” result in violence to himself or others. Both Drs. Kramer
and Warren testified that plaintiff exhibited risk factors for
dangerous behavior such as being a young male, living alone, and
having access to a gun.
Holly Rogers (“Dr. Rogers”), a psychiatrist at Duke
University's Student Counseling Center, testified as an expert on
behalf of defendant. Dr. Rogers indicated that student mental
health centers provide “short-term treatment.” Dr. Rogers stated
that “[m]ost psychotic people aren't dangerous.” Similarly,
Jeffrey Janofsky (“Dr. Janofsky”), a psychiatrist at Johns Hopkins
University, stated that “because the base rate of violence is solow, and most schizophrenics aren't violent and most normal people
aren't violent either, that demographic data does not get you
anywhere in predicting dangerousness.”
Bruce Berger (“Dr. Berger”), a psychiatrist who previously
worked as a student health counselor at East Carolina University,
testified on behalf of defendant. He stated that in the student
health setting, psychiatrists are only able to work with students
for a short time “before [the students] have to make plans with or
without [the psychiatrists'] assistance to get further treatment,
or at least make choices in their life.”
Plaintiff filed suit against defendant on 16 May 1997,
alleging that defendant had been negligent and that the negligence
caused him to be shot in the legs, endure a murder trial, and be
confined indefinitely to a mental institution. Defendant moved for
summary judgment. On 4 September 1998, the trial court entered an
order denying defendant's motion, concluding that “a genuine issue
of material facts exist[ed] to show that [defendant] breached the
applicable standard of care and that [defendant's] treatment
proximately caused injury to [plaintiff].” The court further
found that defendant failed to prove that there was no triable
issue concerning contributory negligence.
The case was tried in the Superior Court, Orange County,
before a jury. Defendant moved for directed verdict at the close
of plaintiff's evidence and at the close of all the evidence. The
trial court denied the motions and submitted the case to the jury,
which determined that plaintiff was damaged by the negligence ofdefendant and that plaintiff was not contributorily negligent.
Based on the jury verdict, the trial court entered judgment
ordering defendant to pay $500,000 with interest and the court
costs of the action to plaintiff. Defendant moved for a new trial
or judgment notwithstanding the verdict. On 31 March 1999, the
trial court entered an order denying the motions. Defendant
appeals.
Defendant argues that the trial court erred in denying his
dispositive motions. Defendant first contends that the trial court
erred in denying his motions for directed verdict and for judgment
notwithstanding the verdict (“JNOV”).
See N.C. Gen. Stat. § 1A-1,
Rule 50 (1999). A motion for JNOV is a renewal of a motion for
directed verdict made after the jury has returned its verdict. As
such, a JNOV “shall be granted if it appears that the motion for
directed verdict could properly have been granted.” N.C.G.S. §
1A-1, Rule 50(b)(1).
In deciding whether to grant or deny either motion, the trial
court must accept the non-movant's evidence as true and view all
the evidence “in the light most favorable to [him], giving [him]
the benefit of every reasonable inference which may be legitimately
drawn therefrom, with conflicts, contradictions, and
inconsistencies being resolved in the [non-movant's] favor.”
Bryant v. Thalhimer Brothers,
Inc., 113 N.C. App. 1, 6, 437 S.E.2d
519, 522 (1993) (citation omitted),
dismissal allowed and disc.
review denied, 336 N.C. 71, 445 S.E.2d 29 (1994). “If there ismore than a scintilla of evidence supporting each element of the
non-movant's claim, the motion should be denied.”
Poor v. Hill,
138 N.C. App. 19, 26, 530 S.E.2d 838, 843 (2000) (citation
omitted). An appellate court's review of a denial of these motions
is limited to a consideration of “whether the evidence viewed in
the light most favorable to [the non-movant] is sufficient to
support the jury verdict.”
Suggs v. Norris, 88 N.C. App. 539, 543,
364 S.E.2d 159, 162 (1988) (citation omitted).
To prevail on a claim of negligence, the plaintiff must
establish that the defendant owed him a duty of reasonable care,
“that [the defendant] was negligent in his care of [the plaintiff,]
and that such negligence was the proximate cause of [the
plaintiff's] injuries and damage.”
Beaver v. Hancock, 72 N.C. App.
306, 311, 324 S.E.2d 294, 298 (1985) (citation omitted). While we
recognize that this case presents a variety of novel issues
concerning virtually every facet of negligence, we have chosen to
focus our discussion on the element of proximate cause.
Defendant's main contention on appeal is, in fact, that his alleged
negligence was not the proximate cause of plaintiff's injuries, and
therefore he was entitled to a directed verdict and JNOV. With
this, we must agree.
North Carolina appellate courts define proximate cause as
a cause which in natural and continuous
sequence, unbroken by any new and independent
cause, produced the plaintiff's injuries, and
without which the injuries would not have
occurred, and one from which a person of
ordinary prudence could have reasonably
foreseen that such a result, or consequences
of a generally injurious nature, was probableunder all the facts as they existed.
Hairston v. Alexander Tank & Equipment Co., 310 N.C. 227, 233, 311
S.E.2d 559, 565 (1984) (citations omitted). The element of
foreseeability is a requisite of proximate cause.
Id. To prove
that an action is foreseeable, a plaintiff is required to prove
that “in 'the exercise of reasonable care, the defendant might have
foreseen that some injury would result from his act or omission, or
that consequences of a generally injurious nature might have been
expected.'”
Hart v. Curry, 238 N.C. 448, 449, 78 S.E.2d 170, 170
(1953) (citation omitted). Thus, the plaintiff does not have to
prove that the defendant foresaw the injury in its precise form.
Hairston, 310 N.C. at 233-34, 311 S.E.2d at 565;
see also Palsgraf
v. Long Island R. Co., 162 N.E. 99, 103 (1928) (Andrews, J.,
dissenting) (“It does not matter that [the actual injuries] are
unusual, unexpected, unforeseen, and unforeseeable.”) However, the
law does not require that the defendant “foresee events which are
merely possible but only those which are reasonably foreseeable.”
Hairston, 310 N.C. at 234, 311 S.E.2d at 565 (emphasis added)
(citations omitted).
A man's responsibility for his negligence must
end somewhere. If the connection between
negligence and the injury appears unnatural,
unreasonable and improbable in the light of
common experience, the negligence, if deemed a
cause of the injury at all, is to be
considered remote rather than a proximate
cause. It imposes too heavy a responsibility
for negligence to hold the [tort-feasor]
responsible for what is unusual and unlikely
to happen or for what was only remotely and
slightly possible.
Phelps v. Winston-Salem, 272 N.C. 24, 30, 157 S.E.2d 719, 723(1967) (citation omitted);
accord Sutton v. Duke, 277 N.C
. 94, 108,
176 S.E.2d 161, 169 (1970) (quoting William L. Prosser,
Law of
Torts § 50, at 303 (3d ed. 1964)) (“it is 'inconceivable that any
defendant should be held liable to infinity for all the
consequences which flow from his act,' [thus] some boundary must be
set”).
Foreseeability is but one element of proximate cause.
Wyatt
v. Gilmore, 57 N.C. App. 57, 290 S.E.2d 790 (1982). Other “equally
important considerations” include:
whether the cause is, in the usual judgment of
mankind, likely to produce the result;
whether the relationship between cause and
effect is too attenuated; whether there is a
direct connection without intervening causes;
whether the cause was a substantial factor in
bringing about the result; and whether there
was a natural and continuous sequence between
the cause and the result.
Id. at 59, 290 S.E.2d at 791 (citation omitted).
Plaintiff alleged that he was injured as a result of
defendant's actions, in that he was wounded during the 26 January
1995 shoot-out, tried for capital murder, and confined to a mental
institution. An examination of the evidence, construed in the
light most favorable to the plaintiff, reveals that defendant could
not foresee plaintiff's injuries. There was absolutely no evidence
that plaintiff posed a threat of violence to others which would in
turn lead to injury. When asked whether dangerousness to others or
to plaintiff himself was foreseeable, plaintiff's own expert, Dr.
Kramer stated, “I'm not sure that I can go that far with it.”
Another one of plaintiff's experts, Dr. Bellard, likewise testifiedthat it was not foreseeable that plaintiff would kill others. In
fact, in the most telling testimony at trial, Dr. Bellard further
responded, “[N]obody's crystal ball is that good[.]”
Plaintiff's own behavior prior to or at the time of
defendant's retirement in no way indicated that he would become
violent. Other than striking himself about the face, plaintiff
never exhibited violent behavior. On his 2 March 1994 intake form,
plaintiff noted that he had no urge to harm others and that he had
no suicidal thoughts.
Plaintiff even noticed an improvement in his condition.
Plaintiff informed defendant that he no longer heard voices and his
hallucinations were virtually gone. Plaintiff further noted that
he had decreased his use of alcohol and recreational drugs, had
attended his law school classes without incident, and had improved
his grades. Furthermore, although plaintiff testified that he
contemplated suicide in 1992, he admitted that he never seriously
thought of harming himself between the 1992 hospitalization and
1994, including the period in which he saw defendant. Plaintiff
further affirmed that thoughts of harming others only occurred
“some number of months” after his last visit with defendant. In
his notes from the last visit with plaintiff, defendant wrote that
plaintiff stated “his friends have been giving him feedback that
he's more 'like his old self, and the guy they used to know and
like.'”
In addition to being unforeseeable, plaintiff's injuries were
too remote in time, and the chain of events which lead toplaintiff's injuries was too attenuated for defendant's actions to
be the proximate cause of plaintiff's injuries. It was eight
months between plaintiff's last visit with defendant and the
incident which led to his injuries. Plaintiff was, by all
accounts, functioning normally when he last visited defendant in
May 1994. Plaintiff spent the summer with his parents in Clyde, at
which time he discontinued his medication and failed to visit a
mental health center or to have his prescriptions refilled. In
August 1994, plaintiff returned to law school and began his fall
classes. Plaintiff testified that his hallucinations began to
resurface gradually and achieved fruition sometime in August or
September. However, plaintiff attended virtually all of his
classes during the fall semester, without disruption, and passed
every course. He maintained his daily needs, including eating,
grooming, shopping, and managing his financial affairs.
Furthermore, after completing the semester, plaintiff took two long
trips alone, after which time he returned to his parents' home in
Clyde.
In January 1995, plaintiff returned to Chapel Hill. Only at
this time did plaintiff begin living out of his car, stop attending
classes, and purchase guns and ammunition. Eight months after his
last visit with defendant, plaintiff shot and killed two
individuals in Chapel Hill, despite never expressing any intent to
do so. Defendant simply could not have foreseen that as a result
of this attenuated chain of events, eight months after his last
appointment, plaintiff, who expressed no violent intentions orthreats, would be wounded during a shoot-out, tried for capital
murder, committed to a mental institution, and not able to continue
his legal studies or pursue a possible career.
Despite this attenuated chain of events, plaintiff contends
that the testimony of his experts was tantamount to the issue of
foreseeability and was more than sufficient to establish that
“some” injury was foreseeable. With this argument, we cannot
agree.
In his testimony, Dr. Kramer expressed difficulty in
concluding that plaintiff's dangerousness to others was
foreseeable. Dr. Kramer then testified as follows:
[W]hat's foreseeable is noncompliance with
treatment, which would directly lead to
exacerbation or increase in the psychotic
symptoms, especially that of his thought
processes. His insight and judgment would
remain poor or get worse. He would continue
abusing substances . . . . That access to a
gun
might not be cut off for him but
might be
reunited with him, and that dangerous behavior
might occur.
Those elements regarding dangerousness
may come together at a point in time.
(Emphasis added.)
Dr. Kramer later testified that although he could not go so far as
to say that plaintiff's dangerousness was foreseeable, “[he could]
say that the foreseeable elements are those that when they come
together in time would lead to dangerousness.”
Dr. Bellard testified that it was foreseeable that plaintiff
would again believe he was a “telepath” and “it was foreseeable
that [plaintiff] would deteriorate and eventually decompensate,
that he would really fall apart mentally, eventually.” Dr. Bellardfurther testified that no one could predict “what [plaintiff]
would
do with that.” Dr. Bellard stated that certain “risk factors” such
as plaintiff's “self-injurious behavior, a history of psychosis, a
history of being resistant to treatment, and an ongoing history of
substance abuse,” would place plaintiff at a “[c]onsiderably
greater risk” for violence against himself. Dr. Bellard could not
definitively say that being at risk for violence to oneself was a
“risk factor” for violence to others. Both Drs. Kramer and Warren
stated that plaintiff's age, gender, his living alone, and his
owning a gun were “risk factors” for violence.
The experts' testimony does not establish foreseeability but
evinces a situation similar to those in which our appellate courts
hesitate to find an individual liable for a possible breach of
duty. In
Westbrook v. Cobb, 105 N.C. App. 64, 411 S.E.2d 651
(1992), for example, the defendant's vehicle struck a utility pole
connected to a transformer, which serviced the plaintiff's house.
As a result, the plaintiff's house caught on fire. The plaintiff,
who was one and one-half miles from his house, was alerted to the
fire and arrived on the scene to assist firefighters in controlling
the blaze. The plaintiff went into his house to retrieve some
items, and in the process, injured his back. This Court found that
“the chain of events resulting in [the plaintiff's] injury [was
not] reasonably foreseeable and within the contemplation of an
ordinary prudent individual.”
Id. at 68, 411 S.E.2d at 653. Thus,
the Court found that proximate cause did not exist.
Id. at 68-69,
411 S.E.2d at 653-54. In
Coltrane v. Hospital, 35 N.C. App. 755, 242 S.E.2d 538
(1978), the Administratrix of the estate of a deceased patient
brought an action against a hospital for the death of the patient,
who fell from a second story ledge. The patient had been placed in
restraints to prevent him from falling out of his bed. The patient
wrestled free from the restraints and was seen standing on the
second story ledge. The patient was later found dead. Our Court
concluded that any negligence which could be imputed to the
hospital was not the proximate cause of the patient's death because
“there [was] no evidence that defendant hospital could have
foreseen the fall from the ledge of the second floor.”
Id. at 758,
242 S.E.2d at 540. In so concluding, this Court relied on the
testimony of the patient's doctor, who stated that the restraints
were only to keep the patient from falling out of the bed and that
he did not view the patient as suicidal.
Id.
Although not completely analogous to the case at bar, these
cases illustrate that North Carolina courts are reluctant to hold
a person liable where the chain of events which led to the
resulting injuries is unforeseeable, remote, and attenuated, even
though “some” injury to plaintiff was “possible.”
See Hairston,
310 N.C. at 234, 311 S.E.2d at 565 (citations omitted). The
contemplation of what “might” happen, which leads to what “might”
or “may” potentially be the outcome, and the consideration of “risk
factors” for violence to oneself which may or may not lead to a
risk of violence to others, is simply not sufficient as a matter of
law to establish the foreseeability of plaintiff's injuries or thecircumstances in which the alleged injuries arose. Furthermore,
evidence of “risk factors” for potential violence, such as gun
ownership, being under a certain age, or being of a certain gender,
implicates a large portion of our population and is simply
insufficient in and of itself to prove foreseeability. Given the
lack of evidence of violence or any threats of violence on
plaintiff's behalf, “the connection between negligence and the
injury appears unnatural, unreasonable, and improbable.”
Phelps,
272 N.C. at 30, 157 S.E.2d at 723 (citation omitted). We therefore
conclude that the expert testimony presented by plaintiff
established what was merely possible and not what was reasonably
foreseeable.
Plaintiff also argues that evidence of foreseeability in the
instant case far surpasses the evidence presented in
Hairston, 310
N.C. 227, 311 S.E.2d 559,
and in other cases in which our appellate
courts have deemed proximate cause an issue for the jury.
Plaintiff contends that like the defendant in
Hairston, defendant
in the case
sub judice should have foreseen an injury would result
from his actions. We find
Hairston distinguishable from the
present case.
In
Hairston, our Supreme Court examined the liability of a car
dealership in a wrongful death suit by a deceased motorist's wife
against the dealer and a truck driver. On the same day as the
accident which led to the suit, the motorist purchased an
automobile from defendant dealer. While the motorist waited, the
dealer changed the tires on the vehicle, but failed to tighten thelug nuts on one of the wheels. The motorist drove the car out of
the dealer's lot and within minutes, the loose wheel fell off. The
motorist stopped the car, and a van pulled up behind the disabled
vehicle. As the motorist stood between his car and the van, the
defendant truck driver struck the van, killing the motorist.
Our Supreme Court held that proximate cause existed to hold
the dealer liable for the motorist's death.
Id. at 235, 311 S.E.2d
at 566. The court found that the dealer could have foreseen the
accident which led to plaintiff's injuries.
Id. The Court noted
that defendant dealer was on “notice of the exigencies of traffic,
and he must take into account the prevalence of the 'occasional
negligence which is one of the incidents of human life.'”
Id. at
234, 311 S.E.2d at 565 (citations omitted).
In the case at bar, plaintiff's violent rampage occurred eight
months after his final session with defendant, while the time
between the dealer's negligence and the motorist's harm in
Hairston
was “barely six minutes.”
Id. at 238, 311 S.E.2d at 567. More
importantly, treating plaintiff's mental illness and predicting
future human behavior are vastly different than maintaining an
automobile and predicting traffic. Indeed, this Court as well as
courts in other jurisdictions have previously recognized the
difficulties inherent in the treatment and diagnosis of mental
illness. In
Pangburn v. Saad, 73 N.C. App. 336, 326 S.E.2d 365
(1985), this Court stated:
“The uncertainties inherent in analyzing and
treating the human mind, let alone the
decision of when a person is 'cured' and no
longer a danger, renders the decisions ofskilled doctors highly discretionary and
subject to rebuke only for the most flagrant,
capricious, and arbitrary abuse.”
73 N.C. App. at 344-45, 326 S.E.2d at 371 (quoting
Leverett v.
State, 399 N.E.2d 106, 110 (Ohio Ct. App. 1978));
see also Lee v.
Corregedore, 925 P.2d 324, 338 (Haw. 1996) (quoting
Seibel v.
Kemble, 631 P.2d 173, 176-77 (Haw. 1981) (footnote omitted))
(“'There is much uncertainty in the diagnosis and treatment of
mental illness and in the prediction of future behavior.'”);
Hicks
v. United States, 511 F.2d 407, 415 (D.C. Cir. 1975) (“A claim of
negligence must be considered in light of the elusive qualities of
mental disorders and the difficulty of analyzing and evaluating
them.”);
Tarasoff v. Regents of Univ. of California, 551 P.2d 334,
345 (Cal. 1976)(“We recognize the difficulty that a therapist
encounters in attempting to forecast whether a patient presents a
serious danger of violence.”)
The uncertainties in diagnosing diseases of the human mind and
predicting future behavior were further hampered in the instant
case by the setting in which defendant observed plaintiff.
Defendant treated plaintiff not in a hospital or private out-
patient facility, but in an out-patient student health care
facility. Dr. Rogers, a university student counseling center
psychiatrist, testified that student health centers provide only
“short-term treatment.” Dr. Berger, a former counselor at a
university facility, likewise testified that a psychiatrist in a
student health care setting provides short-term care “before [the
student has] to make plans with or without [the psychiatrist's]assistance to get further treatment, or at least make choices in
his life.” There is no doubt that such a limited setting, coupled
with the few number of times defendant observed plaintiff, impeded
defendant's ability to predict and foresee plaintiff's actions
eight months after their last meeting.
Our conclusions concerning the foreseeability of plaintiff's
injuries and the unpredictability of mental illness are further
supported by public policy concerns. A court must “evaluate [the
plaintiff's] allegations in light of the goal of treatment,
recovery and rehabilitation of those afflicted with a mental
disease, defect or disorder.”
Seibel, 631 P.2d at 176. Imposing
liability on a psychiatrist in an outpatient, short-term care
setting for the actions of a patient that were at most based on
risk factors and not foreseeability would have adverse effects on
psychiatric care. It would encourage psychiatrists and other
mental health providers to return to paternalistic practices, such
as involuntary commitment, to protect themselves against possible
medical malpractice liability. Despite public perceptions to the
contrary, the vast majority of the mentally ill are not violent or
are no more violent than the general population and thus, such
rigid measures as involuntary commitment are rarely a necessity.
See generally John Monahan,
Mental Disorder and Violent Behavior:
Perceptions and Evidence, 47 Am. Psychol. 511, 519 (1992) (“None of
the data give any support to the sensationalized caricature of the
mentally disordered served up by the media, the shunning of former
patients by employers and neighbors in the community, or regressive'lock 'em all up' laws [based on] public fears.”); Linda A. Teplin,
The Criminality of the Mentally Ill: A Dangerous Misconception, 142
Am. J. Psychiatry 593, 598 (1985) ("stereotype[s] of the mentally
ill as dangerous [are] not substantiated by our data”). “If a
liability were imposed on the physician . . . each time the
prediction of future course of mental disease was wrong, few
releases would ever be made and the hope of recovery and
rehabilitation of a vast number of patients would be impeded and
frustrated.”
Taig v. State, 241 N.Y.S.2d 495, 496-97 (N.Y. App.
Div. 1963).
In the instant case, plaintiff functioned well under
defendant's less-restrictive outpatient care, despite having what
his experts termed a very serious mental illness. He passed all of
his law school courses, took his medication on a regular basis, and
even noted his friends' positive comments on his improved behavior.
This improvement came without the need for involuntary commitment.
In fact, plaintiff's own experts' testimony established that at the
time he was being treated by defendant, plaintiff, like the
majority of the mentally ill, was not a candidate for involuntary
commitment.
Furthermore, North Carolina's policy on the mentally ill
promotes less restrictive methods of treatment and more patient
autonomy.
The policy of the State is to assist
individuals with mental illness, development
disabilities, and substance abuse problems in
ways consistent with the dignity, rights, and
responsibilities of all North Carolina
citizens. Within available resources, [theState is to provide] services to eliminate,
reduce, or prevent the disabling effects of
mental illness . . . through a service
delivery system designed to meet the needs of
clients in the least restrictive available
setting, if the least restrictive setting is
therapeutically most appropriate, and to
maximize their quality of life.
N.C. Gen. Stat. § 122C-2 (1999);
see also Cobo v. Raba, 347 N.C.
541, 546, 495 S.E.2d 362, 366 (1998) (citation omitted) (“a patient
has an active responsibility for his own care and well-being”). It
would therefore be irrational to promote unnecessary, more
restrictive practices in affirming the judgment below.
We recognize that our jurisprudence in the area of proximate
cause is quite varied.
See generally Sutton, 277 N.C. 94, 176
S.E.2d 161; David A. Logan & Wayne A. Logan
, North Carolina Torts,
§ 7.30, at 169 (1996) (“Many of the [North Carolina proximate
cause] cases could have been decided differently.”) We further
recognize that it is only in the rarest of cases that our appellate
courts find proximate cause is lacking as a matter of law.
See
Hairston, 310 N.C. at 235, 311 S.E.2d at 566. However, the law of
proximate cause “'cannot be reduced to absolute rules.'”
Sutton,
277 N.C. at 108, 176 S.E.2d at 169 (quoting Prosser,
supra, § 50,
at 288). This is one of those rare cases where “because of
convenience, of public policy, of a rough sense of justice, the law
arbitrarily declines to trace a series of events beyond a certain
point.”
Palsgraf, 162 N.E. at 103 (Andrews, J., dissenting),
quoted in
Wyatt, 57 N.C. App. at 59, 290 S.E.2d at 791;
Westbrook,
105 N.C. App. at 68, 411 S.E.2d at 654 (citation omitted)
(“proximate cause is to be determined on the facts of each caseupon mixed considerations of logic, common sense, justice, policy
and precedent”).
We conclude that given the very specific and novel factual
scenario presented by this case, defendant's alleged negligence was
not the proximate cause of plaintiff's injuries. Therefore, the
trial court should have granted defendant's directed verdict motion
made at the close of all the evidence.
Having determined that the trial court erred in failing to
grant a directed verdict in defendant's favor based on the issue of
proximate cause, we need not address defendant's remaining
assignments of error.
Because we find that the trial court erred in failing to grant
defendant's directed verdict motion, we reverse the order of the
trial court denying a JNOV and remand with directions for the trial
court to enter judgment in defendant's favor.
Reversed and remanded.
Chief Judge EAGLES and Judge HUNTER concur.
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