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Court of Appeal, First District, Division 2, California.

Melanie BELLAH and Robert N. Bellah, Plaintiffs and Appellants, v. Daniel P. GREENSON, M. D., Defendant and Respondent.

Civ. 39770.

Decided: October 05, 1977

Robert N. Bellah, Melanie Bellah, in pro per, and Mary S. Schneider, Berkeley, for plaintiffs and appellants. Hanna, Brophy, MacLean, McAleer & Jensen, Donald R. Brophy, Frank B. Hugg, San Francisco, for defendant and respondent.

Plaintiffs appeal from an order sustaining defendant'sdemurrer without leave to amend.[FN1]

Plaintiffs, Melanie and Robert Bellah, are the heirs of Thomasin (Tammy) Bellah, their daughter, who succumbed to a self-inflicted overdose of sleeping pills on April 12, 1973. Tammy had been under the care of defendant, Daniel Greenson, a psychiatrist in Berkeley, for an unspecified period of time prior to her death. It appears that, during that time, defendant concluded that Tammy was disposed to suicide, and he recorded his conclusion in his written notes. At the time of Tammy's death, plaintiffs were temporarily living in Princeton, New Jersey; allegedly, they had no personal contact with Tammy for several months, and were therefore unaware of her suicidal tendencies.

On April 11, 1975, some two years after Tammy's death, plaintiffs instituted the present action for wrongful death, alleging that defendant had failed to personally take measures to prevent Tammy's suicide; that he had failed to warn others (including plaintiffs) of the seriousness of Tammy's condition and her suicidal proclivity; and that he had failed to inform plaintiffs that Tammy was consorting with heroin addicts in plaintiffs' home. Plaintiffs alleged that, as a result of defendant's negligence, they suffered severe mental anguish and pecuniary loss due to theft from their home. The complaint encompasses two causes of action, one in tort and one in contract, alleging negligence on the part of defendant.

Defendant demurred generally to the complaint and also raised the defense of the statute of limitations by way of demurrer. The demurrer was sustained without leave to amend. Plaintiffs' motion for reconsideration was denied on October 1, 1975, and the present appeal followed.

The primary issue to be decided on appeal from a judgment rendered following the sustaining of a demurrer is whether, considering all allegations in the complaint to be true, plaintiffs have stated facts sufficient to entitle them to some relief. (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496, 86 Cal.Rptr. 88, 468 P.2d 216; accord, Landeros v. Flood (1976) 17 Cal.3d 399, 407-408, 131 Cal.Rptr. 69, 551 P.2d 389; People ex rel. Busch v. Projection Room Theater (1976) 17 Cal.3d 42, 48, 130 Cal.Rptr. 328, 550 P.2d 600; Selby Realty Co. v. City of San Buenaventura (1973) 10 Cal.3d 110, 123, 109 Cal.Rptr. 799, 514 P.2d 111.) In the present case, a second issue is whether the action is barred by the statute of limitations, as alleged in the demurrer below. (Zapata v. Meyers (1974) 41 Cal.App.3d 268, 272, 115 Cal.Rptr. 854; Anderson v. McNally (1957) 150 Cal.App.2d 778, 783, 310 P.2d 975.)

In order to state a cause of action for negligence, the complaint must allege facts sufficient to show a legal duty on the part of the defendant to use due care, a breach of such legal duty, and the breach as the proximate or legal cause of the resulting injury. The duty of care is always related to some circumstance of time, place and person. (United States Liab. Ins. Co. v. Haidinger-Hayes, Inc. (1970) 1 Cal.3d 586, 594, 83 Cal.Rptr. 418, 463 P.2d 770; DeSuza v. Andersack (1976) 63 Cal.App.3d 694, 701-702, 133 Cal.Rptr. 920.) The determination of whether a duty exists is primarily a question of law. (Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 46, 123 Cal.Rptr. 468, 539 P.2d 36.) Thus, in the present case, we must determine whether plaintiffs have alleged facts sufficient to give rise to a duty on the part of defendant to disclose to plaintiffs that their daughter was, in defendant's opinion, likely to commit suicide and whether he was under a duty to restrain Tammy from so doing.

The general rule of tort liability is that there is no duty, absent some special relationship, to control the conduct of another in order to prevent the occurrence of foreseeable harm, whether that harm is to third parties or is self-inflicted. (Richards v. Stanley (1954) 43 Cal.2d 60, 65, 271 P.2d 23; Wright v. Arcade School Dist. (1964) 230 Cal.App.2d 272, 277, 40 Cal.Rptr. 812; Rest., 2d Torts, (1965) s 315; cf. Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334; Weirum v. RKO General, Inc., supra, 15 Cal.3d 40, 123 Cal.Rptr. 468, 539 P.2d 36; Rowland v. Christian (1968) 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561; Dillon v. Legg (1968) 68 Cal.2d 728, 739, 69 Cal.Rptr. 72, 441 P.2d 912.) The decisions which have imposed such a duty have created narrow exceptions to that general rule.

In Tarasoff, our Supreme Court determined that, under certain circumstances, a therapist had a duty to warn others that a patient under the therapist's care was likely to cause personal injury to a third party. There the court said, “Although . . . under the common law, as a general rule, one person owed no duty to control the conduct of another (citations), nor to warn those endangered by such conduct (citations), the courts have carved out an exception to this rule in cases in which the defendant stands in some special relationship to either the person whose conduct needs to be controlled or in a relationship to the foreseeable victim of that conduct (citation).” (17 Cal.2d p. 435, 131 Cal.Rptr. p. 23, 551 P.2d p. 343.) Applying that exception to the facts of Tarasoff, the court held that where a therapist knows that his patient is likely to injure another and where the identity of the likely victim is known or readily discoverable by the therapist, he must use reasonable care to prevent his patient from causing the intended injury. Such care includes, at the least, informing the proper authorities and warning the likely victim. However, the court did not hold that such disclosure was required where the danger presented was that of self-inflicted harm or suicide or where the danger consisted of a likelihood of property damage. Instead, the court recognized the importance of the confidential relationship which ordinarily obtains between a therapist and his patient, holding that “the therapist's obligations to his patient require that he not disclose a confidence unless such disclosure is necessary to avert danger to others . . . .” (Tarasoff, supra, p. 441, 131 Cal.Rptr. p. 27, 551 P.2d p. 347; emphasis added.)

Far from imposing a duty to warn others of the likelihood of any and all harm which might be inflicted by a patient, Tarasoff requires that a therapist not disclose information unless the strong interest in confidentiality is counterbalanced by an even stronger public interest, namely, safety from violent assault. (Tarasoff, supra, pp. 440-442, 131 Cal.Rptr. 14, 551 P.2d 334.)

Moreover, in Tarasoff, our Supreme Court held that there could be no liability on the part of the therapist for failure to commit or restrain his patient from committing the intended murder. (Pp. 447-448, 131 Cal.Rptr. 14, 551 P.2d 334.) A fortiori, where, as here, the risk of violent assault is not present, there can be no liability for failure to restrain another for his own safety.

In summary, Tarasoff requires only that a therapist disclose the contents of a confidential communication FN2 where the risk to be prevented thereby is the danger of violent assault, and not where the risk of harm is self-inflicted harm or more property damage. We decline to further extend the holding of Tarasoff, and thereby impose liability in the present case.

Since plaintiffs are unable to state a cause of action, the issue of the statute of limitations is moot, and discussion of that issue is unnecessary.

The purported appeal from the order denying plaintiffs' motion for reconsideration is dismissed, and the judgment is affirmed.


1.  Apparently, no judgment of dismissal was ever entered on the demurrer interposed by defendant. Plaintiffs purport to appeal, also, from the order denying their motion for reconsideration, which, of course, is nonappealable. In the interest of justice and to prevent unnecessary delay, we will deem the order sustaining defendant's demurrer to incorporate a judgment of dismissal and thus interpret plaintiffs' notice of appeal as applying to such dismissal. Accordingly, the order sustaining the demurrer without leave to amend is modified by adding thereto a paragraph dismissing the action. (California State Employees' Assn. v. State of California (1973) 32 Cal.App.3d 103, 106, fn. 1, 108 Cal.Rptr. 60.)

ROUSE, Associate Justice.

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