dissenting in part, concurring in part:
Negligence
I agree with the majority that appellant Cooke, for the purpose of avoiding summary judgment, has raised an issue of fact concerning appellees’ failure to meet an appropriate standard of care in the diagnosis and treatment of Robinson’s mental condition.
Duty
I respectfully dissent from the section of the majority opinion dealing with Duty.
This is not a duty to warn case; it is one of negligent diagnosis and treatment. Appellees contend that they owed no duty to Cooke because it was undisputed that Lyle, Dr. Berlin, and Bussanich did not know that Robinson had dangerous propensities, nor did Robinson inform them of any intent to harm Cooke. However, Lyle and Dr. Berlin gratuitously involved Cooke in their professional dealings with Robinson’s mental problems by contacting him to arrange a meeting between Robinson and Cooke. Cooke refused, and Robinson was informed of this rejection by Cooke. Although it was clear that Cooke was the focus of Robinson’s delusions, Dr. Berlin did not probe Robinson to determine what degree of hpstility or anger she directed at Cooke, or the degree of the threat she perceived he posed to her.
Appellant argues that the legal duty in this case is not governed by the rule of “specific threats to specific victims” because she is not premising liability on the “failure to warn” but upon negligent diagnosis and treatment. She asserts that SAMHC and Dr. Berlin owed a duty to any third party foreseeably at risk from negligent performance of psychiatric services to Robinson. She argues that psychotherapists, like other physicians, owe a duty to the public akin to the following recognized duties: liability to persons infected by their patients for failing to diagnose a contagious disease; liability to persons injured in an automobile accident for negligently diagnosing and treating a patient who had a seizure while driving a car; liability to persons injured by a driver for prescribing a drug, the effect of which contributed to causing a collision.
Appellant also argues that a duty to third persons to diagnose and treat a patient in a non-negligent manner finds its basis in Restatement (Second) of Torts § 319 (1965), which provides:
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.
Although cases basing liability upon this provision generally involve custodial situations, appellant Cooke argues that appellees took charge of Robinson by accepting her as an outpatient at SAMHC and under*228taking treatment. Additionally, she argues that had appellees performed their professional services in a non-negligent manner, they should have known that Robinson suffered from “atypical psychosis” which rendered her likely to do bodily harm. Finally, appellant argues that had Robinson’s condition been properly diagnosed and treated, she would not have killed Robert Cooke.
I recognize the reluctance of courts to impose a duty upon psychotherapists to prevent a patient from doing harm to an unknown third party. Much of this concern stems from the inherent difficulty, some contend impossibility, in predicting dangerousness under such circumstances. It is also grounded in the recognition of the inexactness of diagnosing mental illness as compared with physical ailments. However, this difficulty alone does not justify barring recovery in all situations. As the California court stated in interpreting Tarasoff v. Regents of University of California, 17 Cal.3d 425, 551 P.2d 334, 131 Cal.Rptr. 14 (1976):
A negligent failure to diagnose dangerousness in a Tarasoff action is as much a basis for liability as is a negligent failure to warn a known victim once such diagnosis has been made____
Hedlund v. Superior Court, 34 Cal.3d 695, 703, 669 P.2d 41, 45, 194 Cal.Rptr. 805, 809 (1983).
The difficulties in diagnosing or predicting behavior are more properly addressed in determining whether particular conduct was negligent rather than in determining whether a duty exists. The standard of care of mental health professionals must take into account the difficulty in making a definitive diagnosis of mental illness and prognosis of dangerousness. See Hicks v. United States, 511 F.2d 407, 415 (D.C.Cir.1975); Lipari v. Sears, Roebuck & Co., 497 F.Supp. 185, 192 (D.Neb.1980); Peck v. Counseling Service, 146 Vt. 61, 66, 499 A.2d 422, 425 (1985). Appellant is not arguing merely an error in medical judgment with respect to SAMHC and Dr. Berlin’s treatment of Robinson; rather, she is alleging failure to perform a competent examination. Liability can arise from such failure. Revels v. Pohle, 101 Ariz. 208, 418 P.2d 364 (1966). See Bell v. New York City Health & Hosp., 90 A.D.2d 270, 456 N.Y.S.2d 787 (1982).
In Coburn v. City of Tucson, 143 Ariz. 50, 691 P.2d 1078 (1984), our supreme court expressed disapproval of attempts to equate duty with specific details of conduct. The court approved the analysis from W. Prosser and W. Keeton, Law of Torts § 53 at 356 (5th ed. 1984), which defines duty as follows:
“[D]uty” is a question of whether the defendant is under any obligation for the benefit of the particular plaintiff; and in negligence cases, the duty is always the same—to conform to the legal standard of reasonable conduct in the light of the apparent risk. What the defendant must do, or must not do, is a question of the standard of conduct required to satisfy the duty.
In Markowitz v. Arizona Parks Bd., 146 Ariz. 352, 355, 706 P.2d 364, 367 (1985), our supreme court once again expressly and unequivocally pointed out for our benefit and that of the trial courts that “the existence of duty is not to be confused with the details of the standard of conduct.”
Consistent with the analysis of duty by our supreme court are those cases which have viewed the duty owed to others by a psychotherapist as a duty to take reasonable precautions to protect anyone who might reasonably be endangered by their patient. I would reject Brady v. Hopper, 570 F.Supp. 1333 (D.Colo.1983). Instead, I would adopt the approach taken in Lipari v. Sears, Roebuck & Co., in which the court held:
It is not unfair to require the psychotherapist to take those precautions which would be taken by a reasonable therapist under similar circumstances. Moreover, this Court refuses to rule as a matter of law that a reasonable therapist would never be required to take precautions other than warnings____ These issues can only be determined after the parties have had an opportunity to prove what precautions a reasonable psychotherapist *229would take under the circumstances in issue here.
497 F.Supp. at 193. Cf. Tarasoff, 17 Cal.3d at 439, 551 P.2d at 345-46, 131 Cal.Rptr. at 25.
I conclude that appellant Cooke presented sufficient substantial evidence of a relationship between Robinson and appellees that gave rise to a duty to protect others who were foreseeably at risk from negligent performance of their services to Robinson.
Venue
I concur with the majority in the section dealing with Venue but wish to make additional remarks.
All relevant factors indicate that the logical venue of this case should be Pima County. But for the change of venue statute, permitting the Attorney General to demand that venue be Maricopa County, A.R.S. § 12-822(B), the venue of this case would be Pima County. All of the incidents alleged in the'complaint occurred in Tucson. Robinson resides in Tucson. The state facility, Southern Arizona Mental Health Center, where Robinson was treated, is located in Tucson. Every counselor, psychologist and each employee who attended Robinson resides in Tucson. All medical records and other documents material to this case are located in Tucson. Almost all witnesses who may be called to testify at trial reside in Tucson. It would appear that “the convenience of witnesses and the ends of justice would be promoted” by trial in Tucson. See A.R.S. § 12-406(B)(2).
Dr. Berlin practices and lives in Tucson, as does his attorney. Dr. Berlin and Robinson (who was represented by pro bono counsel) both joined with appellant Cooke as petitioners in petitioning the supreme court to grant a special action on the venue issue seeking trial in Tucson. In the special action in the supreme court (No. 17368-SA), the Attorney General appeared on behalf of the state. The Attorney General’s Response disagreed with the proposition that “just any lawyer can adequately try a personal injury suit and stated that “because of the absolute vital importance of the proper presentation of evidence to a jury, specialization in the personal injury field has occurred and trained experienced attorneys are vital to the defense of a lawsuit.” The Attorney General pointedly stated:
The division of the Attorney General’s Office charged with defending the State and its agencies in personal injury litigation is the Liability Defense Division. This division currently [February 7,1984] consists of five attorneys, all of whom are officed in Maricopa County. The Attorney General’s Office would emphasize that no Liability Defense Division attorneys are officed in Pima County or in any other county in the State of Arizona.
The Response indicated that the nine attorneys in the Tucson office specialized in fields other than personal injury, and that the Attorney General had offices only in Phoenix and Tucson.
The supreme court declined to accept jurisdiction of the petition for special action on March 20, 1985. Within six months, the Attorney General “associated” private contract counsel to represent the state.
The state, through private counsel * contracted for by the Attorney General, indicates that there is “a rational basis” for the authority given to the Attorney General in A.R.S. § 12-822(B). I will set forth a summary of' the “rational basis” arguments made by the state and some observations relating to them.
A “rational basis” for the statute assert-. ed by the state is that it is for the “convenience of the state.” The state does not elucidate what the convenience is, or for that matter, what the inconvenience of trial in Tucson would be. Phoenix is the capital, but the Attorney General also has an office in Tucson. Phoenix is as far from Tucson as Tucson is from Phoenix. The state does not claim that the attorneys available to represent the state in counties other than *230Maricopa are less able or that their offices are somehow further from the courthouse.
The state also argues that “minimization of expense to the public” is a rational basis. However, the state does not set forth how it is less expensive for the Attorney General to hire a Phoenix law firm to defend a case in Phoenix as opposed to hiring a Tucson law firm to defend the case in Tucson. The state does not develop its statement that somehow venue in Phoenix “minimize[s] expenditure of effort and public funds.”
The state asserts that venue in Maricopa County provides “uniformity of rulings” and “uniform interpretation of rulings.” Again, the state does not elucidate. There are over 50 superior court judges and an additional number of court commissioners and judges pro tempore in Phoenix who may try this case. It is ludicrous to argue that only efficient and uniform rulings can be obtained in Maricopa County, and not in Pima County. The state does not claim that justice is more just in Phoenix, or even that it is quicker.
The state alleges that “countless litigants” sue the state on all sorts of grounds, and that A.R.S. § 12-822(B) provides a method to “centralize these countless claims so that they can be handled, efficiently, professionally and cost-effectively by the Attorney General.” The Attorney General is not handling this case! Contract attorneys are handling it! The state does not set forth what the benefit is to having a number of different Phoenix contract attorneys handling these “countless claims” in many different courtrooms in Phoenix. Nor has it demonstrated how this leads to efficiency or higher professional standards. The blank assertion that it is “cost effective” is simply a matter of conjecture. The state does not set forth how Tucson contract counsel (or even Phoenix contract counsel, or the office of the Attorney General in Phoenix or Tucson) processing this case in Tucson would be less efficient, less professional or less cost-effective than with present representation and Maricopa County venue.
The only function that A.R.S. § 12-822(B) seems to serve is to provide a vehicle to bring cases to Maricopa County from divers parts of the state in which Phoenix law firms then represent the state’s interest. Both the Attorney General, which is reputed to be the largest law firm in the state, and other law firms it hires in Phoenix, certainly have the competence and capability to practice law anywhere in the state. The attorneys from all of these offices regularly make appearances in cases throughout the state of Arizona. There are attorneys throughout the state who can competently and efficiently represent the state. There are judges and juries throughout the state who can fairly try any issues involving the state.
It would seem appropriate that the supreme court revisit the constitutional issues raised in this case, or that the legislature reconsider the policy of conveniencing the Attorney General when the result is concomitantly to retain Phoenix law firms to represent the state and inconvenience everyone else involved in the litigation. See Cal.Civ.Proc.Code § 401 (West 1973) (the California statute from which A.R.S. § 12-822(B) was originally taken now provides for venue in suits against the state “in any city ... of this State in which the Attorney General has an office”).
Although the lead of this case lists the Attorney General as co-counsel, the Attorney General has not appeared in this court and has not signed the answering brief.