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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
ERIC THORNTON, Plaintiff, v. F.J. CHERRY HOSPITAL and NORTH
CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES, SELF-INSURED
(KEY RISK MANAGEMENT, Servicing Agent), Defendants
Filed: 15 May 2007
1. Tort Claims Act_injury in mental health hospital_findings_supported by evidence
In a Tort Claims action arising from an injury in a mental health hospital, the evidence
supported the Industrial Commission's findings that the patients did not physically confront one
another, physical threats were not made, and a staff member's actions comported with all of the
hospital's procedures. Questions of credibility and weight remain in the province of the
2. Tort Claims Act_injury in mental health hospital_staff's notice of threats against
In a Tort Claims action arising from an injury in a mental health hospital, the Industrial
Commission's unchallenged findings of fact supported its conclusion that plaintiff failed to prove
that the Hospital had notice of alleged threats against plaintiff by other patients.
3. Tort Claims Act_injury in mental hospital_conclusion of no negligence
The Industrial Commission did not err in a Tort Claims action arising from an injury in a
mental hospital by concluding that plaintiff had presented no evidence of employee negligence.
N.C.G.S. § 143-297 requires that the claim set forth the name of the State employee upon whose
alleged negligence the claim is based.
4. Tort Claims Act_injury in mental health hospital_duty of care and breach of
The plaintiff failed to prove that the duty of care owed to him was breached in a Tort
Claims action arising from an injury in a mental health hospital from an attack on plaintiff by
5. Tort Claims Act_injury in mental health hospital_contributory negligence
In a Tort Claims action arising from an injury in a mental health hospital, the Industrial
Commission's unchallenged findings of fact support its conclusion that plaintiff's provocation of
the attack on him by other patients and his failure to notify staff members of alleged threats
proximately caused his alleged attack and injuries.
Judge JACKSON dissenting.
Appeal by plaintiff from opinion and award entered 8 May 2006
by Commissioner Christopher Scott for the North Carolina Industrial
Commission. Heard in the Court of Appeals 21 March 2007.
Narron & Holdford, P.A., by Ben L. Eagles, for plaintiff-
Attorney General Roy Cooper, by Special Deputy Attorney
General Amar Majmundar and Assistant Attorney General Laura J.
Gendy, for defendants-appellees.
Eric Thornton (plaintiff) appeals from the opinion and award
entered by the Full Commission of the North Carolina Industrial
Commission (the Commission) denying his claim under the Tort
Claims Act. We affirm.
On 16 May 2000, plaintiff was involuntarily committed to F.J.
Cherry Hospital (Hospital) after he inflicted multiple
lacerations upon himself with a box cutter. Plaintiff's treatment
records indicate he cut himself approximately twenty times about
the head, chest, and legs in order to obtain a narcotic painkiller.
That day, plaintiff also attempted to persuade Hospital Staff
Member Ruth Maye, RN, (Maye) that he had broken his right leg and
needed narcotics for pain. No evidence suggested plaintiff's right
leg was broken, and Maye did not provide any narcotics to
plaintiff. Plaintiff also contacted his family and complained the
Hospital would not provide him with narcotics and suggested he
might run his head through glass in order to obtain narcotics.
Hospital staff informed plaintiff they would not provide him
narcotics. On 17 May 2000, plaintiff continued to seek narcotics from
Hospital staff. Plaintiff became irate, attempted to throw a
wheelchair, and threatened to sue the Hospital for poor health
care. Plaintiff also told a nurse that his left knee was broken
and that he needed narcotics. No evidence suggested plaintiff's
left knee was broken. At approximately 3:15 p.m. that day,
plaintiff and another patient engaged in a verbal confrontation.
Hospital staff separated plaintiff and the patient pursuant to
Hospital procedures. At approximately 4:00 p.m., a Hospital
employee conducted a routine ward check. He observed plaintiff was
awake and seated in the TV room.
At approximately 4:18 p.m., plaintiff became involved in an
alleged physical altercation with other patients in the TV room.
Plaintiff alleged an assailant struck him in the head while he was
asleep in the TV room, and he fell out of his wheelchair.
Plaintiff alleged the whole ward then jumped on him and an
assailant stomped on his left leg, causing a fracture to his left
tibia. Plaintiff changed his allegations before the Deputy
Commissioner and stated he: (1) was struck in the head; (2) stood
up to fight the assailants; (3) threw one assailant into the
television; (4) threw a second assailant into a book shelf; and (5)
continued to stand and fight as another assailant approached him
from the side and kicked him in the left shin. Plaintiff testified
no Hospital staff members were present in the ward, that all were
on break. Plaintiff presented no witnesses of the alleged
attack. At approximately 4:18 p.m., Hospital Staff Member Erthel
Anderson (Anderson) was located approximately ten to fifteen feet
and Hospital Staff Member Ken Marsh was approximately twenty-five
to thirty feet from the alleged altercation. Hospital Staff Member
Rico Raynor was located approximately thirty to thirty-five feet
away and Hospital Staff Member Nate Phillips was located
approximately forty to fifty feet away. Plaintiff presented for
treatment and was diagnosed with a broken left tibia.
On 15 May 2002, plaintiff filed a claim for damages under the
North Carolina Tort Claims Act against the Hospital and the North
Carolina Department of Health and Human Services (collectively,
defendants). Plaintiff alleged the physicians, nurses, and
medical providers of the Hospital deviated from the standard of
medical care for his treatment and their deviation proximately
caused his injury. The Deputy Commissioner denied plaintiff's
claim. Plaintiff appealed to the Full Commission, which affirmed
the Deputy Commissioner's denial of his claim. Plaintiff appeals.
Plaintiff argues the Commission erred when it: (1) entered
finding of fact numbered 8; (2) entered conclusions of law numbered
4, 5, 6, and 7; and (3) denied his claim under the Tort Claims Act.
III. Standard of Review
The standard of review under the Tort Claims Act is well
settled. [W]hen considering an appeal from the Commission, our
Court is limited to two questions: (1) whether competent evidence
exists to support the Commission's findings of fact, and (2)whether the Commission's findings of fact justify its conclusions
of law and decision. Simmons v. N.C. Dept. of Transportation, 128
N.C. App. 402, 405-06, 496 S.E.2d 790, 793 (1998). [C]onclusions
of law are reviewable de novo on appeal. Starco, Inc. v. AMG
Bonding and Ins. Services, 124 N.C. App. 332, 336, 477 S.E.2d 211,
IV. Finding of Fact Numbered 8
 Plaintiff argues the Commission erred when it found that
the patients did not physically confront one another, physical
threats were not made, and Anderson's actions comported with all
Hospital procedures. Finding of fact numbered 8 states:
8. At approximately 3:15 p.m. on May 17, 2000,
Erthel Anderson, a Cherry Hospital staff
member, observed the plaintiff and another
patient in a verbal confrontation regarding
cigarette smoking. Pursuant to Cherry
Hospital procedure, Anderson separated the
arguing patients, spoke to them individually,
observed that the patients had settled and
resolved the issue, and allowed the patients
to proceed with their respective activities.
At no time did the patients physically
confront one another, nor were physical
threats made between the patients. The Full
Commission finds that Anderson's actions
comported with all Cherry Hospital procedures.
The Industrial Commission's findings of fact are conclusive
on appeal when supported by competent evidence . . . . even though
there is evidence which would support findings to the contrary.
Bailey v. Dep't of Mental Health, 272 N.C. 680, 683-84, 159 S.E.2d
28, 30-31 (1968). On appeal, this Court does not . . . weigh the
evidence [or] decide the issue on the basis of its weight. The
Court's duty goes no further than to determine whether the recordcontains any evidence tending to support the finding. Anderson v.
Construction Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965).
Questions of credibility and weight remain the province of the
Commission, which may accept or reject all the testimony of a
witness. Lineback v. Wake County Board of Commissioners, 126 N.C.
App. 678, 680, 486 S.E.2d 252, 254 (1997). The Commission is the
sole judge of the credibility of the witnesses and the weight to be
given their testimony. Melton v. City of Rocky Mount, 118 N.C.
App. 249, 256, 454 S.E.2d 704, 709, disc. rev. denied, 340 N.C.
568, 460 S.E.2d 319 (1995).
No record evidence shows plaintiff's verbal confrontation
escalated into a physical altercation during the 3:15 p.m.
confrontation. Plaintiff failed to recall any of the patients'
names who allegedly threatened him. The Hospital's physician
testified Anderson followed Hospital procedures when he separated
plaintiff and the other patient after the verbal confrontation.
Competent evidence supports the Commission's findings of fact that
plaintiff presented no evidence tending to show a physical
confrontation or threats of physical violence occurred around 3:15
The Hospital's Nurse Manager testified Anderson acted in
conformity with Hospital procedures in separating plaintiff and the
other patient. Competent evidence in the record also supports the
Commission's finding of fact that Anderson acted properly. This
assignment of error is overruled.
V. Conclusion of Law Numbered 4
 Plaintiff argues the Commission erred when it concluded he
failed to prove the Hospital had notice of the alleged threats
under conclusion of law numbered 4, which states:
4. Although the personnel at Cherry Hospital
had a duty to care for the plaintiff during
his involuntary commitment, the plaintiff has
failed to prove a breach of that duty.
Specifically, the plaintiff contends that he
had repeatedly warned staff members about the
threats made against him. Yet, there is no
evidence in the record to support this
contention. Therefore, the plaintiff has
failed to prove that the defendant had notice
of any alleged danger to him. Without said
notice, the defendant cannot be held
responsible for damages to the plaintiff.
See, Willis v. City of New Bern, 137 N.C. App.
762, 529 S.E.2d 691 (2000). Further, the
happening of an injury does not raise the
presumption of negligence. Smith v. Hickory,
252 N.C. 316, 318, 113 S.E.2d 557, 559
(1960)(citation omitted). There must be
evidence of notice either actual or
Under the Tort Claims Act, [t]he burden of proof [to show
negligence is] on the plaintiff. Evidence is usually not required
in order to establish and justify a finding that a party has failed
to prove that which he affirmatively asserts. It usually occurs
and is based on the absence or lack of evidence. Bailey v. N.C.
Dep't of Mental Health, 2 N.C. App. 645, 651, 163 S.E.2d 652, 656
(1968). Foreseeable injury is a requisite of proximate cause,
which is, in turn, a requisite for actionable negligence.
Barefoot v. Joyner, 270 N.C. 388, 393-94, 154 S.E.2d 543, 547
(1967). To prove forseeability, a plaintiff must show that the
defendant might have foreseen that some injury would result fromhis act or omission, or that consequences of a generally injurious
nature might have been expected. Williamson v. Liptzin, 141 N.C.
App. 1, 10, 539 S.E.2d 313, 319 (2000).
A hospital, much like the proprietor of any public facility,
owes a duty to its invitees to protect the patient against
foreseeable assaults by another patient. Sumblin v. Craven County
Hospital Corp., 86 N.C. App. 358, 361, 357 S.E.2d 376, 378-79
All that the plaintiff is required to prove on
the question of forseeability, in determining
proximate cause, is 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
Hart v. Curry, 238 N.C. 448, 449, 78 S.E.2d 170, 170-71 (1953).
A hospital is not required to take such inordinate precautions
for its patients' safety to make it impractical for it to operate
its business. Hedrick v. Tigniere, 267 N.C. 62, 67, 147 S.E.2d
550, 554 (1966). The duty a hospital owes its patients is to
exercise reasonable or ordinary care to maintain, in a reasonably
safe condition, that part of the hospital designed for the
patients' use. Samuel v. Simmons, 50 N.C. App. 406, 408, 273
S.E.2d 761, 762, cert. denied, 302 N.C. 399, 279 S.E.2d 352-53
(1981). This duty imparts the additional duties owed to an
invitee: the duty to warn the patient of hidden unsafe conditions
and the duty to discover hidden unsafe conditions by reasonable
inspection and supervision. Jones v. Pinehurst, Inc., 261 N.C.
575, 578, 135 S.E.2d 580, 582 (1964). These duties are limited tounsafe conditions of which the hospital has notice. Revis v. Orr,
234 N.C. 158, 160, 66 S.E.2d 652, 654 (1951). It is only when the
dangerous condition is known or should have known to a hospital
that recovery is permitted. Id. at 160-61, 66 S.E.2d at 582.
Plaintiff failed to allege or present evidence to show the
Hospital or its employees owed or breached any duty to protect him
from harming himself. Plaintiff also failed to present any
evidence the Hospital or its staff received notice of the threats
to him. Plaintiff testified several people threatened him and that
he told the staff members about these threats, but could not
identify any source or person making the threats. After plaintiff
received these threats, he walked into the ward's common TV room
and fell asleep.
Hospital Nurse Supervisor Laura Rose testified no threats were
reported by plaintiff. She testified that after plaintiff's 3:15
p.m. verbal confrontation, nothing indicated the patients were
provoking each other. Hospital Nurse Manager Billy Tart also
testified nothing showed the Hospital received any notice of the
threats to plaintiff.
The Commission's uncontested findings of fact state:
D. A review of the plaintiff's records reveals
that he made no comments or warnings to staff
members about the impending violence against
him. This absence of such a notation is
significant, as it was Cherry Hospital policy
to note such threats in the files of both the
threatened patient and the threatening
E. When questioned, the plaintiff was unable
to name any of the staff members that he
allegedly warned; was unable to describe thestaff members he allegedly warned; was unable
to specifically recall where or when he
allegedly warned these staff members; and was
unable to specifically recall how many staff
members he spoke to about the threats
allegedly made against him.
F. The plaintiff testified that he was
frightened by the alleged threats made against
him; however, it appears that despite these
threats, the plaintiff spent time in the day
room where he felt comfortable enough to
sleep, instead of seeking safety with staff
Plaintiff failed to prove he was threatened and presented no
competent evidence to show any particular patients had threatened
him, or that the Hospital received notice of these alleged threats.
The Commission's unchallenged findings of fact support its
conclusion that plaintiff failed to prove the Hospital had notice
of the alleged threats. This assignment of error is overruled.
VI. Conclusion of Law Numbered 5
 Plaintiff argues the Commission erred when it concluded he
presented no evidence of employee negligence. We disagree.
Conclusion of law numbered 5 states:
5. In his Affidavit, the plaintiff named
Mangaraju Kolluru, MD, Hoda Eskander, MD,
Robert Ownes, MD, R. Maye, RN, Rose Malpass,
RN, Dennis Harris, PA-C, and V. Srikantha, PA,
as the alleged negligent employees. The
plaintiff presented no evidence of negligence
on the part of these individuals, and
therefore his claim must fail. See, N.C. Gen.
Stat. § 143-291, see also, Ayscue v. Highway
Commission, 270 N.C. 100, 103, 153 S.E.2d 823
N.C. Gen. Stat. § 143-297 (2005) provides that a claim must be
accompanied by an affidavit in duplicate, setting forth among other
things, the name of the Department, Institution, or Agency of theState of North Carolina against which the claim is asserted and the
name of the State employee upon whose alleged negligence the claim
The purpose of requiring the claimant to specify the name of
the State employee whose alleged negligent act caused the injury is
to enable the State or Department to properly investigate the
employee designated, to ascertain the facts of the claimant's
alleged acts of negligence, and to present evidence or be heard
with respect thereto. Floyd v. Highway Commission, 241 N.C. 461,
464, 85 S.E.2d 703, 705 (1955). In order to recover under the Tort
Claims Act, the claimant's affidavit must set forth the name of the
allegedly negligent employee and the acts of negligence relied
upon. Crawford v. Wayne County Board of Education, 3 N.C. App.
343, 346, 164 S.E.2d 748, 750 (1968), aff'd, 275 N.C. 354, 168
S.E.2d 33 (1969).
Plaintiff alleged in his affidavit that Mangaraju Kolluru, MD,
Hoda Eskander, MD, Robert Ownes, MD, R. Maye, RN, Rose Malpass, RN,
Dennis Harris, PA-C, and V. Srikantha, PA were negligent.
Plaintiff's testimony contradicted his affidavit. Plaintiff
testified he did not mean to blame these specific people, that
whomever was on duty was at fault, and that he did not know those
individual's specific names. Plaintiff testified that the Hospital
staff was generally negligent, not any of these individuals
specifically. No record evidence shows plaintiff proved any of
these individuals were negligent.
The Commission's uncontested findings of fact show: H. The plaintiff could not name a single
member of the Cherry Hospital staff that was
negligent. When asked at trial, the plaintiff
admitted that he had no evidence that the
staff were not where they were supposed to
. . . .
22. Billy Tart, a nurse manager, testified
that the staff acted appropriately and within
Cherry Hospital procedures.
. . . .
26. The plaintiff offered no evidence proving
that acts or omissions of Cherry Hospital
staff proximately caused his injuries. The
plaintiff specifically failed to provide
evidence that the named employees committed
any acts or omissions that would constitute
The Commission's unchallenged findings of fact show plaintiff
presented no evidence that any Hospital employee was negligent.
These findings of fact support the Commission's conclusion that
plaintiff presented no evidence of negligence on the part of these
individuals, and therefore his claim must fail. This assignment
of error is overruled.
VII. Conclusion of Law Numbered 6
 Plaintiff argues the Commission erred when it concluded he
failed to show the level of care owed to him. We disagree.
Conclusion of law numbered 6 states:
6. The plaintiff failed to provide any expert
testimony to support his allegations that the
staff at Cherry Hospital failed to conform to
an accepted standard of care or to industry
standards. Without such evidence, the
plaintiff cannot even show the level of care
that was owed to him. Without evidence or
expert opinion of that duty owed, theplaintiff cannot, therefore, prove a breach of
the duty owed to him.
The elements of a cause of action based on negligence are:
a duty, breach of that duty, a causal connection between the
conduct and the injury and actual loss. Davis v. N.C. Dept. of
Human Resources, 121 N.C. App. 105, 112, 465 S.E.2d 2, 6 (1995).
A duty is defined as an obligation, recognized by the law,
requiring the person to conform to a certain standard of conduct,
for the protection of others against unreasonable risks. Id. A
breach of the duty occurs when the person fails to conform to the
standard required. Id. Under the Tort Claims Act, [t]he burden
of proof [to show negligence rests] on the plaintiff. Bailey v.
North Carolina Department of Mental Health, 2 N.C. App. 645, 651,
163 S.E.2d 652, 656 (1968).
The general rule places no duty to protect others against harm
from third persons. King v. Durham County Mental Health Authority,
113 N.C. App. 341, 345, 439 S.E.2d 771, 774, disc. rev. denied, 336
N.C. 316, 445 S.E.2d 396 (1994). A recognized exception, however,
exists where a person has been involuntarily committed for a mental
illness, in which case there is a duty on the institution to
exercise control over the patient with such reasonable care as to
prevent harm to others at the hands of the patient. Pangburn v.
Saad, 73 N.C. App. 336, 338, 326 S.E.2d 365, 367 (1985).
Plaintiff failed to proffer any evidence tending to show a
duty the Hospital owed to him, or that the Hospital breached that
duty. Plaintiff's only witnesses were himself, Hospital physicianDennis Harris, Hospital Nurse Supervisor Laura Rose, and Hospital
Staff Supervisor Billy Tart.
The Commission's uncontested findings of fact numbered 10 and
10. At approximately 4:00 p.m. on May 17,
2000, Nate Phillips conducted a routine check
of the ward, which included the day room where
the plaintiff sat. It was noted by Phillips
that at 4:00 p.m., the plaintiff was awake,
watching television. Phillip's actions of
checking the day room were part of the normal,
standard operating procedures of Cherry
. . . .
13. At the time of the alleged attack, four
staff members were on the ward. This number
of staff members was double the minimum
Competent evidence in the record shows all four staff members were
located between ten to fifty feet away from plaintiff. Plaintiff
failed to prove the duty of care owed to him was breached.
Instead, plaintiff and the witnesses he presented testified
Hospital staff either satisfied or exceeded procedural requirements
and standard of care. This assignment of error is overruled.
VIII. Conclusion of Law Numbered 7
 Plaintiff argues the Commission erred when it concluded
his claim is barred by contributory negligence. We disagree.
Conclusion of law numbered 7 states:
7. Even if it can be assumed that the
defendant breached a duty to the plaintiff,
his claim, nevertheless, is barred as he
contributed and proximately caused his
injuries when he provoked other patients;
failed to notify staff of the alleged threatsmade against him; and put himself in a
position to be attacked.
In order to sustain an award under the Tort Claims Act, a
claimant must show not only injury resulting from a designated
employee's negligence, but must also prove that the claimant was
not guilty of contributory negligence. Floyd, 241 N.C. at 465, 85
S.E.2d at 706.
The Commission's uncontested findings of fact show:
11. Prior to the attack, it was noted that the
plaintiff had provoked other inmates on the
ward, even daring them to strike him.
. . . .
20. Dennis Harris, employed by Cherry Hospital
as a Physician-Extender II, testified that he
arrived at the ward soon after the alleged
attack upon the plaintiff. Harris indicated
that although the plaintiff initially claimed
that the whole ward jumped on him without
provocation, the plaintiff later admitted his
role in provoking the attackers.
The Commission's unchallenged findings of fact support its
conclusion that plaintiff's provocation of the attack and his
failure to notify Hospital staff members of the alleged threats,
proximately caused his alleged attack and injuries. Plaintiff
admitted his role in provoking an alleged attack. This assignment
of error is overruled.
IX. Commission's Denial of Plaintiff's Claim
Plaintiff's final argument broadly states the Commission erred
when it denied his claim under the North Carolina Tort Claims Act.
Plaintiff failed to demonstrate the Commission's findings were
unsupported by any competent evidence. Plaintiff also failed toshow the findings of fact did not support the Commission's
conclusions of law. This assignment of error is dismissed.
Competent evidence in the record supports the Commission's
finding of fact that no physical confrontation and physical threats
occurred and that Anderson's actions comported with Hospital
procedures during plaintiff's 3:15 p.m. verbal confrontation. The
Commission properly concluded: (1) plaintiff failed to prove the
Hospital had notice of the alleged threats; (2) plaintiff presented
no evidence of negligent conduct by any employee; (3) plaintiff
failed to show the level of care the Hospital owed to him; and (4)
plaintiff's claim was barred by contributory negligence. Plaintiff
failed to demonstrate the Commission's findings were unsupported by
competent evidence. Plaintiff failed to show the Commission's
findings of facts did not support its conclusions of law. The
Commission's 8 May 2006 opinion and award is affirmed.
Judge HUNTER concurs.
Judge JACKSON dissents by separate opinion.
JACKSON, Judge dissents.
For the reasons stated below, I must respectfully dissent from
the majority's conclusion that plaintiff failed to establish that
the defendant Hospital breached a duty owed to plaintiff and that
plaintiff was contributorily negligent. I would hold that
defendant did in fact owe a duty of care to plaintiff, which was
breached when defendant failed to take reasonable precautions toprotect plaintiff from causing harm to himself. I also
that plaintiff's claim is not barred by contributory negligence, as
the reasonable person standard should not be applied to an
individual who has been involuntarily committed to a psychiatric
hospital due to mental illness. Therefore, I would reverse the
opinion and award of the Full Commission.
The majority states that not only does a hospital owe a
duty to its invitees to protect the patient against foreseeable
assaults by another patient[,] Sumblin v. Craven County Hospital
Corp., 86 N.C. App. 358, 361, 357 S.E.2d 376, 378-79 (1987), but
that the hospital should not be required to take such inordinate
precautions for patients' safety, which would make it impractical
for the hospital to operate. In the instant case, the majority
agrees with the Full Commission in holding that plaintiff failed to
present any evidence that the hospital or its staff received notice
of threats to plaintiff. I disagree.
Plaintiff, having been involuntarily committed, cannot be
considered an invitee in the truest sense of the word. See Nelson
v. Freeland, 349 N.C. 615, 617, 507 S.E.2d 882, 883 (1998) (An
invitee is one who goes onto another's premises in response to an
express or implied invitation and does so for the mutual benefit of
both the owner and himself.). Plaintiff was not a typical patient
in a typical medical hospital -- he had been involuntarily
committed to a psychiatric hospital due to his acts of self-
mutilation and drug seeking behaviors. Following his admission to
the hospital, based upon his acts of self-mutilation, plaintiff hadan altercation with another patient, and he made repeated threats
to harm himself or other patients. The hospital clearly was on
notice that plaintiff had both the intention and capability to harm
himself, and that he likely would take action, or cause events,
which would lead to his being injured in order to be given
Although a hospital, as that in Sumblin, may owe a duty to
protect a patient from foreseeable assaults by other patients, this
duty also should extend to protecting a patient, who is predisposed
to harming himself, from actually harming himself along with
others. While defendant hospital may not have received reports of
actual threats being directed towards plaintiff, the hospital staff
did have notice that prior to the attack, plaintiff had verbally
confronted another patient, he had provoked other patients even
daring to strike them, and that he was taking a variety of actions
in order to obtain the narcotics. The Commission's own
unchallenged findings indicate as much. Thus, it was reasonably
foreseeable that plaintiff would cause an altercation with fellow
patients which would result in his being injured.
Therefore, I would hold the hospital owed plaintiff a duty of
reasonable care to protect him from causing injury to himself.
The majority properly states the general rule that there is no
duty to protect someone from harm caused by third persons. King v.
Durham County Mental Health Authority, 113 N.C. App. 341, 345, 439
S.E.2d 771, 774, disc. review denied, 336 N.C. 316, 445 S.E.2d 396
(1994). The exception to the rule, which is applicable to theinstant case, provides that there is a duty 'upon the actor to
control the third person's conduct,' and 'to guard other persons
against his dangerous propensities' when one of five special
relationships exists. Id. at 345-46, 439 S.E.2d at 774 (citations
omitted). When an individual has been involuntarily committed to
a state hospital, that hospital owes a duty of care to the public
to protect them from harm caused by the involuntarily committed
individual. Davis v. N.C. Dept. of Human Resources, 121 N.C. App.
105, 112, 465 S.E.2d 2, 7 (1995), disc. review denied, 343 N.C.
750, 473 S.E.2d 612 (1996); see also King, 113 N.C. App. at 346,
439 S.E.2d at 774; Pangburn v. Saad, 73 N.C. App. 336, 338, 326
S.E.2d 365, 367 (1985). The majority erroneously holds that
plaintiff failed to show that defendant owed a duty of care to
plaintiff, or that defendant breached that duty.
In order to impose liability upon a defendant for a breach of
a duty owed in the type of relationship found in the instant case,
defendant must have had both '1) the ability to control the person
and 2) knowledge of the person's propensity for violence.' King,
113 N.C. App. at 346, 439 S.E.2d at 774 (quoting Abernathy v.
United States, 773 F.2d 184, 189 (8th Cir. 1985)). I would hold
that both factors are present in this case. The holdings in Davis
and King set forth a duty to prevent harm to third persons at the
hands of the involuntarily committed patient. Following the
logical progression of this holding leads to an extension of this
duty to protect patients who have been involuntarily committed,
based specifically upon their being a danger to themselves, fromcausing self-harm. When a patient has been involuntarily
committed, specifically because he has been found to be a danger to
himself, the hospital is obligated to exercise control over the
patient with such reasonable care as to prevent injury to himself
at his own hands. To hold otherwise would negate the reason for
such a commitment in the first place.
Plaintiff came to the hospital after exhibiting serious self-
harming behaviors, and he continued to exhibit similar behaviors
following his commitment. He not only told hospital staff that he
was going to run his head through glass, but he also provoked other
patients on several occasions both verbally and physically, and
once attempted to throw a wheelchair after becoming angry. All of
plaintiff's actions were in an effort to convince the staff that he
was injured and in need of narcotics. As in Davis and King, if
there is a duty to protect third persons from harm, then the duty
should be extended to protect the patient himself from self-harm,
particularly when the very purpose of his involuntarily commitment
is for this exact reason. If a hospital such as defendant does not
have a duty to protect plaintiff from injuring not only third
persons, but also himself, then there would be no purpose in
involuntarily committing a individual who poses a danger to
The primary purpose of an involuntary
commitment proceeding is to protect the person
who, after due process, has been found to be
both mentally ill and imminently dangerous, by
placing such a person in a more protected
environment where the danger may be minimized
and his treatment facilitated; in a real sensethe proceeding is an important step in his
medical and psychiatric treatment.
Gregory v. Kilbride, 150 N.C. App. 601, 610, 565 S.E.2d 685, 692
(2002). Thus, upon being involuntarily committed, defendant had
control over plaintiff and the burden of protecting plaintiff fell
I would hold that the hospital was well aware of the basis for
plaintiff's involuntary commitment, his actions following his
commitment, and of his determination to injure himself in order to
obtain narcotics. Based upon this notice, the hospital failed to
take reasonable precautions to prevent plaintiff from injuring
himself or being injured by other patients as a result of his
provocation. The hospital had available to it several escalating
levels of intervention, including seclusion, see N.C. Gen. Stat. §
122C-60 (2005); 10A NCAC 28D .0203 (June 2006), however no
precautions were taken other than to separate plaintiff from the
patient with whom he had a verbal confrontation. Following that
altercation and his previous threats to strike other patients,
plaintiff was then permitted to roam freely in the TV ward with
The hospital owed plaintiff a duty to protect him from harm.
10A NCAC 28C .0101(a) (June 2006); see N.C. Gen. Stat. § 122C-66
(2005). Plaintiff presented sufficient evidence to establish that
defendant owed a duty of care to him, and that defendant breached
this duty by failing to take reasonable care to protect plaintiff
from causing harm to himself. Finally, I would hold that any role plaintiff may have had in
provoking the other patients, and placing himself in a position to
be attacked, does not constitute a bar to his claim of negligence.
[C]ontributory negligence consists of conduct which fails to
conform to an objective standard of behavior -- the care an
ordinarily prudent person would exercise under the same or similar
circumstances to avoid injury. Smith v. Fiber Controls Corp., 300
N.C. 669, 673, 268 S.E.2d 504, 507 (1980) (citations and quotations
omitted). The standard by which contributory negligence is judged
is that of a reasonable person. Our Supreme Court has stated, 'the
question is not whether a reasonably prudent person would have seen
the [defect,] . . . but whether a person using ordinary care for
his or her own safety under similar circumstances[.]' Nelson v.
Novant Health Triad Region, 159 N.C. App. 440, 445, 583 S.E.2d 415,
418 (2003) (quoting Norwood v. Sherwin-Williams Co., 303 N.C. 462,
468, 279 S.E.2d 559, 563 (1981)). Thus, while plaintiff admits his
role in provoking the attack, it defies logic to hold that an
individual who has been involuntarily committed due to mental
illness can be considered a reasonable person. Plaintiff was
involuntarily committed because he was a danger to himself and
because he was incapable of acting as a reasonable person. Thus,
I believe that to hold plaintiff to the standard of a reasonable
person or an ordinarily prudent person is improper, and his
actions should not bar his claim of negligence.
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