[J-88-2019] [MO: Dougherty, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
LAURA L. MAAS, ADMINISTRATRIX OF : No. 7 WAP 2019
THE ESTATE OF LISA CHRISTINE MAAS, :
DECEASED, : Appeal from the Order of the
: Superior Court entered June 29,
Appellee : 2018 at No. 185 WDA 2017,
: affirming the Order of the Court of
: Common Pleas of Allegheny County
v. : entered November 9, 2016 at No.
: GD-09-18900.
:
UPMC PRESBYTERIAN SHADYSIDE :
D/B/A WESTERN PSYCHIATRIC :
INSTITUTE AND CLINIC; WESTERN :
PSYCHIATRIC INSTITUTE & CLINIC; :
MICHELLE BARWELL, M.D.; AND :
WESTERN PSYCHIATRIC INSTITUTE & :
CLINIC ADULT COMMUNITY TREATMENT :
TEAM, :
:
Appellants : ARGUED: October 16, 2019
DISSENTING OPINION
JUSTICE BAER DECIDED: JULY 21, 2020
The Majority today holds that because Terrance Andrews expressed to his mental
health care providers that he had recurring homicidal ideations towards a “neighbor,”
those mental health professionals had a legal duty to warn the approximately eighty
tenants in Andrews’ urban apartment building that Andrews posed an imminent threat of
serious bodily injury to each of them. I respectfully dissent, as I view the Majority’s holding
as a significant and unwarranted departure from this Court’s decision in Emerich v.
Philadelphia Center for Human Development, Inc., 720 A.2d 1032 (Pa. 1998), which set
forth the limited circumstances where a mental health care provider has a duty to warn a
third party of a danger posed by a mental health patient.
I agree with the Majority that a duty to warn is not limited only to named targets of
violence, and may encompass a readily identifiable individual or group. One’s “neighbor”
in an urban setting, however, is not readily identifiable, as it may encompass tenants on
either side of one’s apartment; tenants residing on the same floor; those living on other
floors in the same building; residents inhabiting apartments in a building adjacent to the
patient’s residence; and those living on the same block or within the same community,
and so on, without a discernable limited criteria.
To impose a legal obligation on mental health professionals to warn a large,
amorphous group of potential targets is unworkable, as mental health professionals will
be unable to ascertain who is entitled to a warning.1 Further complicating the matter is
that it is unclear when the mental health professional’s duty shifts from treating the
mentally ill patient to protecting the safety of the patient’s “neighborhood.” Finally,
requiring the dissemination of a warning to such a broad segment of the public will
adversely affect the privacy rights of patients receiving mental health treatment in this
Commonwealth. Accordingly, while the instant case is most tragic, I believe our
jurisprudence requires reversal of the Superior Court’s judgment, which affirmed the trial
court’s denial of the mental health professionals’ motion for summary judgment.
It is well-settled that the general rule under common law is that there is no duty to
control the conduct of a third party to protect another from harm. Emerich, 720 A.2d at
1036. Emerich recognized a judicial exception to that rule “where a defendant stands in
1 The lower courts deemed the readily identifiable group as the fourth floor tenants of
Hampshire Hall, while the Majority concludes that all tenants of the building were
members of the readily identifiable group to which a duty to warn was owed. These
disparate interpretations of the term “neighbor” suggest that the term is not, in fact, readily
identifiable.
[J-88-2019] [MO: Dougherty, J.] - 2
some special relationship with either the person whose conduct needs to be controlled or
in a relationship with the intended victim of the conduct, which gives to the intended victim
a right to protection.” Id. (citing Restatement (Second) of Torts § 315 (1965)). Based on
the California Supreme Court’s landmark decision in Tarasoff v. Regents of University of
California, 551 P.2d 334 (Ca. 1976), the Emerich Court concluded that the special
relationship between a patient and a mental health professional may, in certain
circumstances, give rise to an affirmative duty to warn a third party of potential harm by
his patient.2 Emerich, 720 A.2d at 1037.
Notably, in defining the scope of the duty to warn, Emerich acknowledged “the
conundrum a mental health care professional faces regarding the competing concerns of
productive therapy, confidentiality and other aspects of the patient’s well[-]being, as well
as an interest in public safety.” Id. at 1040. In light of these concerns and because the
duty recognized constitutes an exception to the general rule that there is no duty to control
the conduct of a third party, the Emerich Court emphasized that “the circumstances in
which a duty to warn a third party arise are extremely limited.” Id.
The Emerich Court examined the scope of the duty to warn and found “strong
reasons” for limiting a mental health professional’s duty to warn to a “specifically identified
or readily identifiable third party.” Id. In support of that limitation, the Court opined that
the nature of therapy encourages patients to profess threats of violence, few of which the
2 In Tarasoff, a mental health patient informed his therapist that he was going to kill a girl,
who was readily identifiable as Tatiana Tarasoff. After the patient fulfilled his threat and
killed Tarasoff, her parents filed an action against the therapist, alleging, inter alia, that
he had a legal duty to warn Tarasoff of the patient’s threat against her. Recognizing that
a person generally owes no duty to control the conduct of another, the California Supreme
Court carved an exception to that general rule. Specifically, the court held that “[w]hen a
therapist determines, or pursuant to the standards of his profession should determine,
that his patient presents a serious danger of violence to another, he incurs an obligation
to use reasonable care to protect the intended victim against such danger.” Tarasoff, 551
P.2d at 340.
[J-88-2019] [MO: Dougherty, J.] - 3
patients act upon, and that public disclosure of every generalized threat would vitiate the
therapist’s efforts to build a trusting relationship with the patient. Id. at 1040-41. Emerich
also acknowledged the importance of the feasibility of issuing a warning, finding that “as
a practical matter, a mental health care professional would have great difficulty in warning
the public at large of a threat against an unidentified person.” Id. at 1041. These very
concerns come into play here by the Majority’s unwarranted extension of the Emerich
decision to a mental health patient’s threat of violence towards a generally described
segment of the public, as opposed to a readily identifiable individual or group, and animate
the unsoundness of the Majority’s position.
Rejecting the broad approach of imposing upon mental health professionals a duty
to warn “all foreseeable victims,” Emerich cabined the duty to warn to apply only to readily
identifiable victims. Id. at 1041. The Emerich Court also cited the Supreme Court of
California’s decision in Thompson v. Alameda, 614 P.2d 728 (Cal. 1976), issued
subsequent to Tarasoff. In Thompson, the California Supreme Court narrowed the duty
to warn established in Tarasoff and elaborated on the import of a “readily identifiable”
victim. See Maj. Op. at 19 (acknowledging that the Emerich Court “offered parenthetically
that Thompson subsequently ‘limited’ the holding in Tarasoff to ‘identifiable victims’”).
In Thompson, a juvenile offender housed in a county institution had dangerous and
violent propensities towards young children. Prior to his release, the offender told county
officials that if released into the community he would take the life of a “young child residing
in the neighborhood.” Thompson, 614 P.2d at 730. The offender provided no further
details about his intended victim. Within twenty-four hours of his release, the offender
tragically murdered a young child in the garage of his mother’s home. Id. The parents of
the victim sued the county, alleging that it was negligent in failing to warn parents of young
children within the immediate vicinity of the offender’s residence that the offender had
[J-88-2019] [MO: Dougherty, J.] - 4
violent tendencies towards children. Id. The trial court granted the county’s demurrer for
failure to state a cause of action.
The Supreme Court of California in Thompson affirmed, holding that the county
did not owe a duty to warn based on the threat of the offender. It reasoned that, unlike
Tarasoff where the targeted victim was precise and specifically designated, the offender’s
threat to a “young child residing in the neighborhood” was a “generalized threat to a
segment of the population.” Id. at 733. The Thompson Court concluded that there was
no duty to warn about “nonspecific threats of harm directed at nonspecific victims.” Id. at
735 (emphasis omitted). The California Supreme Court opined that the county authorities
would have to issue the warnings to a broad segment of the population and that the
warnings, by necessity, would have to be general in nature, which would pose practical
obstacles and would have little value. Id. at 736. Thompson acknowledged that warnings
to the public at large, as opposed to a named or readily identifiable victim, would “produce
a cacophony of warnings that by reason of their sheer volume would add little to the
effective protection of the public.” Id. at 735.
Notably, the “class” the California Supreme Court confronted in Thompson (a
young child residing in the neighborhood) was narrower than the class the majority
accepts here (neighbor), which subsumes all children and adults in the patient’s
neighborhood, rather than only the children therein. While not binding, I find Thompson’s
rationale persuasive. Stated succinctly, no duty to warn should arise when the mental
health patient describes the target of the threat in general terms, which does not allow for
a clear identification of the intended victim and practical dissemination of an effective
warning. As stated, if a threat against “young children residing in the neighborhood” is a
generalized threat to a segment of the population, the same is true of the broader threat
against a “neighbor.”
[J-88-2019] [MO: Dougherty, J.] - 5
In holding to the contrary, the Majority opines that the mental health professionals
that treated Andrews “might have surmised, on ‘a moment’s reflection,’ see Tarasoff, 551
P.2d at 345 n.11, that Andrews was targeting residents of his apartment building
specifically, and particularly those on his floor with whom he interacted or had greater
opportunity to interact.” Maj. Op. at 20. I respectfully disagree. At various points in time,
Andrews offered different descriptions of the targets of his violent threats. For instance,
Andrews complained of general homicidal ideations towards anyone who “pissed him off,”
and towards “his neighbor.” Appellee’s Complaint, 8/27/2012, at ¶ 17. On other
occasions, Andrews expressed homicidal ideations toward “others,” his brother, an
unidentified friend, and an unidentified person in his apartment building with whom he
had a physical altercation. Appellee’s Complaint at ¶ 24, 31; UPMC Mercy Hospital
Inpatient Behavioral Health Psychiatric Evaluation, 5/11/2008, at 1. Similarly, Andrews
once threatened that if he was not admitted to the hospital, he would “go across the street
and kill someone and just go to jail where [he could] get the death sentence and die.”
WPIC Multidisciplinary Psychiatric Evaluation Report, 1/14/2008, at 6.
Andrews, however, never made a specific imminent threat against the collective
group of tenants residing on the fourth floor of Hampshire Hall or the individuals residing
in the building as a whole. Had Andrews done so, I would agree with the Majority’s
analysis. It is my position that the inquiry is not whether the victim falls into the broad
category of the threat made, but whether the threat is sufficiently specific to provide a
mental health professional with adequate information to know which third party to warn.
See Dunkle v. Food Service East, Inc., 582 A.2d 1342, 1346 (Pa. Super. 1990) (providing
that “for the rule of liability announced in Tarasoff to be kept within workable limits, those
charged with the care of potentially dangerous people must be able to know to whom to
give warnings”).
[J-88-2019] [MO: Dougherty, J.] - 6
While residents of Hamphire Hall are most certainly Andrews’ neighbors, as
discussed above, the term “neighbor” encompasses a far broader range of individuals
than only those that live in Andrews’ building. It is only in hindsight that we know that
Andrews acted upon his homicidal ideations by fatally stabbing a Hampshire Hall resident.
If Andrews had acted upon his homicidal ideations against anyone living in Oakland, a
section of the City of Pittsburgh with a population of about 22,000, one could argue that
the term “neighbor” extended the duty to warn to all 22,000 residents. Such a post hoc
examination of the factual circumstances presented cannot serve as the basis for
imposing a legal duty upon mental health professionals. To do so would require the
mental health professionals to be nothing less than clairvoyant.
There is a significant public interest in supporting the effective treatment of the
mentally ill and protecting the rights of patients to privacy in their confidential
communications with their mental health care providers. The public interest in safety from
violent assaults indisputably outweighs these interests under limited circumstances
where the target of the threat is named or readily identifiable and the mental health
professional is able to disseminate an effective warning to those in danger. Where the
mental health patient conveys a threat to a segment of the local community in general
terms, however, as occurred here, a different balancing of interests must occur to avoid
great harm to the treatment of the mentally ill. As alluded to in Emerich, if each ideation
of a mental health patient is broadcast to a large segment of society, that patient would
be ostracized from the very community that he or she seeks to join and the bond of trust
between the patient and mental health professional would be broken.
As the Superior Court cogently recognized in a distinct but similar context,
“[t]reatment of the mentally ill is not an exact science. If we allow recovery against mental
health . . . providers for harm caused by their patients except in the clearest of
[J-88-2019] [MO: Dougherty, J.] - 7
circumstances, we would paralyze a sector of society that performs a valuable service to
those in need of mental health care.” F.D.P. v. Ferrara, 804 A.2d 1221, 1232 (Pa. Super.
2002). I do not believe that the instant case presents anything close to the clearest of
circumstances, which would warrant the imposition of a duty to warn upon the mental
health care providers at issue.
Accordingly, while acknowledging the tragedy that has befallen an innocent young
woman and her family, and the importance of taking necessary steps to prevent its
recurrence, I am nevertheless compelled to conclude that a threat against a “neighbor,”
at least in the context of the urban environment at issue here, does not delineate a readily
identifiable third party to whom a mental health professional owes a duty to warn. As
Appellants did not have a duty to warn Lisa Maas of Andrews’ homicidal ideations under
the facts presented, and there are no genuine issues of material fact for the jury to resolve,
summary judgment in favor of the mental health care providers is appropriate. It is for
these reasons that I would reverse the judgment of the Superior Court, which affirmed the
trial court’s denial of Appellants’ motion for summary judgment.
Chief Justice Saylor joins this dissenting opinion.
[J-88-2019] [MO: Dougherty, J.] - 8