and other services for
the mentally ill owe no duty of care to the general public arising from
the care of an outpatient who is receiving treatment on a voluntary
For the reasons that follow, I hold that no bright-line rule exists.
Rather, the existence of a duty of care to the general public arising
from the treatment of an outpatient turns on the facts. Here, accepting
the allegations of the complaint as true for purposes of these motions,
and drawing all reasonable inferences in his favor, I conclude that, as
to the health care providers, Rivera has stated claims upon which relief
may be granted and that therefore he is entitled to offer evidence in
support of his claims. Accordingly, the motions of the health care
providers are denied. As to the homeless shelters, although I conclude as
well that no bright-line rule exists protecting all homeless shelters
from liability for the actions of voluntary residents, I conclude that
Rivera has failed to allege facts that would give rise to the existence
of a duty on the part of the homeless shelter defendants here.
Accordingly, their motions are granted.
First, I discuss the applicable law: (a) the general principles
governing the duty of care in third-party failure to protect situations;
(b) the duty of care owed by medical and psychiatric care providers in
particular; (c) the distinctions in the duty of care arising from the
treatment of inpatients and the treatment of outpatients; (d) the
procedures available to health care providers in New York to control
potentially dangerous mentally ill individuals; and (e) the case law on
the duty of care owed by shelters. Second, I apply the various principles
to the facts alleged in the complaints in these cases.
I. Applicable Law
A. The Duty of Care
To prevail on a claim of negligence under New York law,*fn4 a
plaintiff must prove (1) a duty owed by the defendant to the plaintiff to
use reasonable care, (2) breach of that duty by the defendant, and (3)
injury to the plaintiff. Pulka v. Edelman, 390 N.Y.S.2d 393, 394-95
(1976); see also Eiseman v. New York, 518 N.Y.S.2d 608, 613-14 (1987). In
general, a defendant has no duty to control the conduct of a person to
prevent him from causing harm to others. See Wagshall v. Wagshall,
538 N.Y.S.2d 597, 598 (2d Dep't 1989); see also Restatement (Second) of
Torts §§ 314, 324(A) (1963-1964). In certain circumstances, however,
the law does impose such a duty. For example, a special relationship may
exist between the defendant and a third person such that the defendant is
required to control the third person to protect others. See Fay v.
Assignment Am., 666 N.Y.S.2d 304, 306 (3d Dep't 1997)
The Restatement of Torts provides some guidance as to when a special
relationship exists for these purposes. It states that a person has a
duty to control the conduct of a third person if:
(a) a special relation exists between the actor and
the third person which imposes a duty upon the
actor to control the third person's conduct, or
(b) a special relation exists between the actor and
the other which gives to the other a right to
Restatement (Second) of Torts § 315 (1963-1964). The master-servant,
parent-child, and common carrier-passenger relationships
have all been deemed "special" relationships in certain circumstances.
Id. at § 314A.
The Restatement also provides that "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."
Restatement (Second) of Torts at § 319 (1963-1964). New York courts
adhere to these principles. Purdy v. County of Westchester,
530 N.Y.S.2d 513, 516 (1998) (special relationship exists between
defendant and third person when that third person's "actions expose
plaintiff to harm such as would require the defendant to attempt to
control the third person's conduct; or [there is] a relationship between
the defendant and plaintiff requiring defendant to protect the plaintiff
from the conduct of others").
The question of whether a defendant owes a duty to a plaintiff or the
public at large is a question of law for the court. See Purdy, 530
N.Y.S.2d at 516 (citations omitted) ("The question of whether a member or
group of society owes a duty of care to reasonably avoid injury to
another is of course a question of law for the courts.").
B. Medical and Psychiatric Care Providers
In general, medical doctors owe a duty of care to their patients and
persons they knew or reasonably should have known were relying on them for
services to the patient, but they do not owe a duty to the public at
large. See Rebollal v. Payne, 536 N.Y.S.2d 147, 148 (2d Dep't 1988). The
category of persons relying on a physician's services is narrowly
construed, and physicians cannot be held liable for mistakes made in the
course of treatment when the treatment has a proper medical foundation.
See Bell v. New York City Health & Hosps. Corp., 456 N.Y.S.2d 787, 794
(2d Dep't 1982) (citations omitted). A physician's duty "is to provide
the level of care acceptable in the professional community in which he
practices. He is not required to achieve success in every case and cannot
be held liable for mere errors of professional judgment." Schrempf v. New
York, 496 N.Y.S.2d 973, 977 (1985) (citations omitted)
The duty owed to third parties by a psychiatrist or mental health
practitioner is somewhat different than that owed by a physician. A
psychiatrist or mental health practitioner has the same general duty to
exercise "professional judgment" and treat patients using a "proper
medical foundation." Bell, 456 N.Y.S.2d at 794; see also Smith v. Fishkill
Health-Related Ctr., 572 N.Y.S.2d 762, 764 (3d Dep't 1991) (citation
omitted) ("a mental health practitioner is not responsible for harm
inflicted by a patient so long as the faulty treatment, if any, is at
most an error in the exercise of professional judgment"), appeal denied,
578 N.Y.S.2d 878 (1991). In the case of mental health practitioners,
however, in certain circumstances this duty is owed not only to patients
and the narrow category of individuals the physician could expect to be
affected by the treatment, but to the outside public as well. See Winters
v. New York City Health & Hospitals Corp., 636 N.Y.S.2d 320 (1996); see
also Schrempf, 496 N.Y.S.2d at 977.*fn5
The Winters and Schrempf decisions are instructive. In Winters, a
hospital released a psychiatric patient who later killed a third party.
Clearly, the hospital was mistaken in releasing the patient. The First
Department affirmed a denial of summary judgment, holding that issues of
fact existed as to whether the hospital's decision to release was based
on an error in the exercise of professional medical judgment or whether
the hospital had failed to make the inquiries that it should have made.
636 N.Y.S.2d at 320. The court noted:
Given that a resident psychiatrist apparently failed
to inquire into the nature of the patient's auditory
hallucinations and the phrase the patient kept
repeating to himself, it is not clear whether there
was a careful psychiatric examination of the patient.
Nor is it clear whether the patient's records from
prior psychiatric hospitalizations at the same
institution were read prior to the patient's release.
Id. at 321.
In Schrempf, the claimant's husband was killed by a mental patient who
had been released from a State institution but was still receiving
outpatient treatment at the facility. Schrempf, 496 N.Y.S.2d at 974. The
trial court and the Fourth Department found the State liable for
negligently failing to have the patient committed prior to the assault.
The Court of Appeals reversed, holding that in cases where a patient is
confined, "there is both a duty to the inmate to provide him with
reasonable rehabilitational conditions under the circumstances and to the
outside public to restrain the dangerous, or potentially dangerous, so
that they may not harm others." Schrempf, 496 N.Y.S.2d at 977 (quotation
omitted). The court also observed that "the State has frequently been
held liable for the consequences of its breach of duty to protect others
from the acts of the mentally ill confined to State institutions." Id.
(quotation and citations omitted). The court nonetheless reversed the
finding of liability, concluding that the State's psychiatrists were not
negligent, and that any errors they made were mistakes made in the course
of exercising their professional judgment.
C. Inpatient and Outpatient Treatment
Relying on Schrempf and other cases finding no liability in outpatient
situations, defendants argue that a bright-line rule exists protecting
mental health providers from liability for treating outpatients who later
harm third parties. See, e.g., Wagshall, 538 N.Y.S.2d at 598 ("In a
voluntary outpatient treatment setting, a defendant clinic has been held
to have no duty to control its patient's conduct."). For the following
reasons, I conclude, however, that no bright-line rule exists and that,
in certain limited circumstances, a mental health provider may be liable
for failing to control or commit a voluntary outpatient who later harms a
member of the public.
First, New York has not adopted a bright-line rule. Defendants cite
many cases in an effort to establish such a rule, but the cases they cite
are fact-specific and turn on factors other than merely whether the
patient was an outpatient or an inpatient. For example, in Wagshall,
plaintiff and his wife received outpatient treatment
from a counseling
agency. 538 N.Y.S.2d at 598. Plaintiff's wife shot him seven to eight
months after the treatment was terminated, and he sued, asserting that
defendants were negligent in their treatment of him and his wife and in
failing to detain his wife or warn him. The court held that the
defendants owed plaintiff no duty, but it did so because the treatment
had been terminated months before the shooting and the plaintiff was
"well aware of his peril, having been attacked by his wife on prior
occasions." Id. at 598.
Likewise, defendants' reliance on Kolt v. United States, No. 94 Civ.
0293E(H), 1996 WL 607098 (W.D.N.Y. Oct. 2, 1996), is misplaced. There, a
psychiatric outpatient shot and killed himself and his spouse. The husband
had been treated at a V.A. hospital on both an outpatient and inpatient
basis. The wife's estate sued the United States on the theory that the
V.A. was negligent for failing to warn the wife of the risks presented by
her husband. Citing Wagshall, the court granted summary judgment
dismissing the complaint because the plaintiff "failed to create a
genuine issue of fact as to whether any employee of the surviving
defendant should have known that Thomas Kolt presented such a serious and
imminent danger to his wife that a duty to warn her existed." Id. at *3
The court noted that "there is no basis — beyond what she herself
knew — for inferring that [Kolt] presented a serious risk of
imminent harm to his wife." Id. Hence, the case turned on the absence of
evidence that the V.A. should have known that the husband presented a
serious risk to the wife.*fn6
Second, substantial New York case law — including the decision of
the Court of Appeals in Schrempf — supports the conclusion that
health care providers may be liable to third parties in outpatient
situations. Although it ultimately rejected the claim of negligence, the
court in Schrempf held that because the patient in question "was a
voluntary outpatient, the State's control over him, and consequent duty
to prevent him from harming others, is more limited than in case
involving persons confined to mental institutions." 496 N.Y.S.2d at 978
(emphasis added). Hence, even though the patient was an outpatient, the
court recognized that the State had a duty, albeit a more limited one, to
prevent him from harming others. The court reversed the finding of
liability not because there was no duty, but because the evidence showed
that the State had not breached its duty. The patient's outpatient status
did not absolve the State of responsibility.
In Webdale v. North General Hosp., No. 111310/99, slip op. (S.Ct. N.Y.
Co. June 13, 2000), appeal dismissed, 734 N.Y.S.2d 527 (1st Dep't 2001),
the court specifically recognized the existence of a duty in outpatient
Where the individual involved is a voluntary
psychiatric outpatient, the institution's control over
the patient, and thus its duty to prevent the patient
from harming others, is more limited. . . . However,
the duty does not disappear, and the institution may
be held liable if the failure to place the patient on
inpatient status resulted from something
other than an exercise of professional judgment. . . .
Defendants' contention that there is no duty. as a
matter of law, in the voluntary outpatient context, is
simply erroneous. . ., as is the suggestion that the
duty does not run to the public at large, but only in
favor of the patient or the patient's relatives. . ..
Slip op. at 5, 7 (citations omitted; emphasis added).
Third, there is substantial case law from other jurisdictions holding
that, in certain circumstances, mental health care providers may have a
duty to protect others from the actions of voluntary outpatients. The
leading decision is still the California Supreme Court's decision in
Tarasoff v. Regents, 551 P.2d 334 (Cal. 1976). There, a student at the
University of California at Berkeley was killed by a voluntary outpatient
who had told his psychologist of his intention to kill the student. Id.
at 339-41. The court held that California law did not require the
therapist to "render a perfect performance," but only the "reasonable
degree of skill, knowledge, and care ordinarily possessed and exercised
by members of (that professional specialty) under similar circumstances."
Id. at 345 (quotation and citations omitted). Nevertheless, the Tarasoff
Once a therapist does in fact determine, or under
applicable professional standards reasonably should
have determined, that a patient poses a serious danger
of violence to others, he bears a duty to exercise
reasonable care to protect the foreseeable victim of
that danger. While the discharge of this duty of due
care will necessarily vary with the facts of each
case, in each instance the adequacy of the therapist's
conduct must be measured against the traditional
negligence standard of the rendition of reasonable
care under the circumstances.
Id. at 345 (emphasis added).