Webstad v. Stortini

Turner, J.

(dissenting) — The Webstad family is entitled to their day in court. Susan Webstad was a person with known suicidal tendencies and a history of suicidal gestures. Stortini and Webstad had a pattern in which he would rescue and caretake following each such episode. Their relationship was marked by Webstad’s divorce, treatment for depression and alcohol addiction, and her repeated suicide attempts when Stortini would not make a further commitment to her. Sufficient evidence exists to let the jury decide whether the history of rescues created a special relationship between Webstad and Stortini that gave Stortini the responsibility to further aid Webstad because she was relying on him to do so. Reasonable inferences can be drawn from the evidence that Stortini may have acted with deliberate indifference to Webstad’s dire medical needs when, after undertaking to render aid, he *877failed to take reasonably necessary steps to protect her, thereby increasing her risk of harm.

A "special relationship” may arise when one increases the risk of injury because of a dependency relationship which induces reliance or prevents assistance from others. See People v. Oliver, 210 Cal. App. 3d 138, 258 Cal. Rptr. 138, review denied (Aug. 17, 1989). Webstad’s psychological ability to help herself was impaired, especially given the longstanding dependency relationship between herself and Stortini.

Given the nature of the Stortini/Webstad relationship, Stortini’s presence at the scene of the emergency and knowledge of her peril created an implicit assurance that he would aid her, thus preventing her from taking measures to aid herself. Because Webstad knew he was aware of her suicidal tendencies, and because of his pattern of conduct during their relationship, she would expect assistance from him when in peril. The record contains evidence that Stortini responded promptly to a pill-taking suicide gesture she made in September 1989. He also took charge of Webstad’s emotional and physical condition when, following a suicide attempt, he admitted her to a 12-day inpatient alcohol treatment program and brought her home upon completion.10

Stortini did not have a duty to aid his romantic partner merely because a medical emergency existed. A duty did arise, however, when he demonstrated to Webstad that he appreciated the gravity of her peril and undertook to render services to her by immediately offering to transport her to the hospital or to dial 911. Even where an offer to seek or render aid is implicit and unspoken, a duty to *878make good on the promise has been found by most courts if it is reasonably relied upon. Brown v. MacPherson’s, Inc., 86 Wn.2d 293, 301, 545 P.2d 13 (1975). The court in Brown adopted the Restatement (Second) of Torts § 323 (1965), which sets forth the standard to be applied in this case:

One who undertakes ... to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such harm,
or
(b) the harm is suffered because of the other’s reliance upon the undertaking.[11]

Whether Webstad’s special dependency relationship with Stortini reasonably induced her to rely to her detriment on his judgment to make medical decisions to save her is a triable issue of fact.

Another triable issue of fact is whether Stortini acted with deliberate indifference to Webstad’s dire medical needs. He accepted at face value her reluctance to accept his offer to obtain medical help. He also failed to obtain competent medical advice. The evidence indicates that Stortini could easily have determined the type and quantity of drug she took. The empty medication bottle *879was readily available.12 Its label indicated the name of the medicine dispensed and the phone number of the pharmacy which dispensed it. If the medication bottle itself left any doubt, one or two samples had conveniently fallen into the sink. A phone call to Group Health’s 24-hour number, any hospital emergency room, or poison control hotline would have provided access to a medical professional. Someone could have given Stortini a preliminary assessment of the danger of ingesting an overdose of Vera-pamil pills. He failed to make such a call, a reasonable step under the circumstances. He said he could not find a telephone book.13 He did not call directory assistance or a telephone operator.

Had Stortini assessed the number of missing pills, or realistically assessed the danger, and contacted any number of easily available authorities, it is reasonable to assume aid would have been quickly dispatched. He was not oblivious to the type of intervention necessary. Stor-tini told the police that he remembered when this happened before, Webstad went to the hospital to have her stomach pumped, and after a couple of days she was fine.

A triable question of fact exists, as to whether Susan Webstad would have died if Stortini called 911 sooner. When Stortini, a public figure, finally did call 911, he asked twice that the response be made without lights or sirens.14 A jury could infer that the same motivation that *880caused his concern about the sirens, also caused his delay in making the call in the first place.

If, as the medical examiner suggests, Susan Webstad’s death resulted from a "suicide gesture gone wrong,” this is a critical turning point. It could be inferred from the facts that Webstad’s gesture was calculated to invite attention and rescue by Stortini. Webstad was a person with known suicidal tendencies and a history of suicidal gestures. She was visibly despondent, and conveyed that she wanted to die. She swallowed a handful of prescription drugs in the presence of Stortini and purportedly declined his offer to summon emergency medical assistance. A trier of fact could reasonably conclude that, given the history of their special dependency relationship, Web-stad relied upon Stortini to recognize that further inquiry into the extent of her peril was necessary for her protection, and that she relied upon him to do at least this much to aid her. When she later began to feel ill and it was apparent to her that Stortini had done nothing, she overtly asked him to call Group Health. Stortini did not call.

Here, whether the dependency relationship between Webstad and Stortini induced her reliance on his judgment is relevant as to Stortini’s liability for negligent performance of undertaking to render services. Stortini knew *881of Webstad’s suicidal tendencies and had rescued her before. This was an established pattern in the relationship. Stortini rescued Webstad and provided caretaking following her past suicidal, depressive, and alcohol related incidents.

The Medical Examiner determined Webstad’s death to be a suicidal gesture gone wrong. What went wrong may have been Stortini’s failure to rescue Webstad when they both understood that she was relying on him to do so. The trier of fact should determine whether Webstad’s special relationship of dependency upon Stortini induced her to rely upon him to save her, and whether his abandonment of the undertaking until she fell unconscious placed her in greater unreasonable risk of serious harm.

Review denied at 131 Wn.2d 1016 (1997).

When intoxicated, Webstad repeatedly told Stortini that his on-again-off-again approach to their relationship and his failure to make a commitment greatly upset her. She talked about suicide quite often, especially when she had been drinking. On the night of her death, Webstad was drinking with Stortini at his residence. Stortini also played the film "See You in the Morning.” It was about two couples who got divorced and remarried. The movie brought up the subject of commitment, and had certain parallels to their own relationship. Thus, Webstad became extremely angry and hysterical from Stortini’s refusal to commit to their relationship.

Comment (c), § 323, Restatement op Torts (Second) 1965, instructs: "His motives in discontinuing the services are immaterial. . . . Where however, the actor’s assistance has put the other in a worse position than he was in before, either because the actual danger of harm to the other has been increased by the partial performance, or because the other, in reliance upon the undertaking, has been induced to forego other opportunities of obtaining assistance, the actor is not free to discontinue his services where a reasonable man would not do so. . . .” (Emphasis added.)

Stortini showed the empty bottle to a sheriffs deputy who arrived with the aid crew. The phone number of the pharmacy was on the label. The pill bottle was labeled: Verapamil — 100 count, dosage one tablet twice a day — and was dated 7/30/91. It could have been easily ascertained, assuming a normal dosage schedule, that roughly 52 pills were available for her to ingest.

Stortini said that he could not find a telephone book because the house belonged to his late uncle. .But he had been living in the home for several months.

A transcript of the 911 call and a follow-up call by the 911 dispatcher reveals that Stortini twice asked the aid units to respond without sirens. Excerpts from the transcript are as follows:

Stortini: A lady took some pills and I can’t get her to wake up. I think they’re blood pressure pills.
*880Dispatcher: Do you think she might have overdosed on these?
Stortini: Yeah, I think so.
Dispatcher: [asks for address]
Stortini: [confirms address]. . . The light’s on in the front. Can you come up without all the lights and sirens and things? I’ll have the lights on and be out in front.
Stortini gives directions, says "She doesn’t look good at all.” and hangs up. Dispatcher calls back, establishes caller’s name, and asks several questions.
Stortini: I think you better hurry here.
Dispatcher: OK, well....
Stortini: Try not to put the sirens on.
Dispatcher: Yeah, well, see, the Fire Department, they’re already on their way.