Avitia v. Crisis Preparation

IN THE

SUPREME COURT OF THE STATE OF ARIZONA

SAMUEL AVITIA,
Plaintiff/Appellant,
v.

CRISIS PREPARATION AND RECOVERY INC.,
Defendant/Appellee.

No. CV-22-0288-PR
Filed October 16, 2023

Appeal from the Superior Court in Maricopa County
The Honorable Sally Schneider Duncan, Judge (Retired)
Nos. CV2016-051180
CV2017-050265
AFFIRMED

Opinion of the Court of Appeals, Division One
254 Ariz. 213 (2022)
VACATED

COUNSEL:

David L. Abney (argued), Ahwatukee Legal Office, P.C., Phoenix; Darius
O. Bursh, Marc D. McCain, Zari Panosian, McCain & Bursh Attorneys at
Law, P.C., Scottsdale; and Jill Kennedy, Kennedy Kemmet PLLC, Phoenix,
Attorneys for Samuel Avitia

Carol M. Romano (argued), Resnick & Louis, P.C., Scottsdale, Attorneys for
Crisis Preparation and Recovery, Inc.

Lincoln Combs, O’Steen & Harrison, PLC, Phoenix, Attorneys for Amicus
Curiae Arizona Association for Justice

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 AVITIA v. CRISIS PREPARATION AND RECOVERY INC.
Opinion of the Court

_______________

JUSTICE BOLICK authored the Opinion of the Court, in which CHIEF
JUSTICE BRUTINEL and JUSTICES LOPEZ, BEENE, MONTGOMERY,
and KING joined. VICE CHIEF JUSTICE TIMMER concurred in part,
dissented in part, and concurred in the result.
_______________

JUSTICE BOLICK, Opinion of the Court:

¶1 In this case we are asked to decide whether mental health
professionals have a statutory or common law duty to third parties for harm
caused by a patient under their care. We hold that the statutory duty to
report child abuse or neglect under A.R.S. § 13-3620(A) does not encompass
reporting a risk of future harm. We also hold that mental health
professionals owe a duty to third parties based not on foreseeability of
harm, but on their special relationship and public policy. Because prior
judicial decisions found a duty in such circumstances based on
foreseeability, see Hamman v. County of Maricopa, 161 Ariz. 58 (1989) and
Little v. All Phoenix South Community Mental Health Center, 186 Ariz. 97 (App.
1996), we overrule those decisions.

BACKGROUND

¶2 The mother of Samuel Avitia’s twin boys (“Mother”) has a
long history of mental health problems. She has been evaluated and treated
by numerous mental health professionals, including professionals working
for Crisis Preparation and Recovery, Inc. (“Crisis Prep”).

¶3 In May 2011, a Crisis Prep counselor attempted to evaluate
Mother twice while she was receiving inpatient mental health treatment.
However, the counselor was unsuccessful in completing an evaluation
because Mother was too psychotic the first time and refused the evaluation
on the second attempt. Records from her stay at the behavioral hospital
reflect that Mother exhibited concerning behavior toward others and had

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Opinion of the Court

an infatuation with putting things in water as part of a ritualistic cleansing
of spirits.

¶4 Mother met Avitia in the summer of 2012 and became
pregnant shortly after. In 2013, she gave birth to twin boys. Avitia and
Mother never married and lived separately. In accordance with a custody
order, the twins were in Avitia’s care half the time. Although he maintained
his custody schedule, he had little communication with Mother. Mother
lived primarily with her mother (“Grandmother”) and stepfather in their
home, and sometimes with her father in his apartment. Grandmother often
cared for the twins. Mother and her family informed Avitia that Mother
had serious mental health issues, including suicidal ideation, that she had
been hospitalized to address those issues, and that the twins were cared for
by Mother’s family during those periods.

¶5 In October 2013, Mother’s parents took her to a Recovery
Innovations facility because she reported seeing demons, was depressed
and anxious, and was displaying erratic behavior at home. While receiving
inpatient mental health treatment, a Crisis Prep licensed professional
counselor evaluated Mother and determined that she did not meet the
criteria for seriously mentally ill status because she appeared “to be
completely clear in thought and functioning fairly well once again.”
However, the counselor determined that her symptoms “appear to meet
criteria for Brief Psychotic Disorder with Marked Stressors and a secondary
of Primary Insomnia.”

¶6 Then in April 2014, Mother suffered an extreme psychotic
episode and consequently was taken to an emergency room, where another
Crisis Prep licensed professional evaluated her. Grandmother told the
counselor that she was “terrified” for Mother to be alone with the twins and
that the family was concerned as to how she would behave with them. The
counselor concluded that Mother should be voluntarily transferred for
inpatient care, treatment, and stabilization in a behavioral health unit.
Mother was told that if she refused this care, they would petition the court
for involuntary treatment. Mother then attempted to leave the hospital,
assaulting hospital personnel in the process.

¶7 The next day, a different Crisis Prep licensed professional
counselor initiated the process for involuntary court-ordered evaluation
and treatment pursuant to A.R.S. § 36-523, alleging that Mother was a
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Opinion of the Court

danger to herself and others, and persistently or acutely disabled. The
superior court granted the petition for court-ordered treatment, finding that
Mother was a danger to herself and persistently or acutely disabled, but not
a danger to others, then ordered inpatient treatment. Mother was
transported to Desert Vista Behavioral Health Center (“Desert Vista”).

¶8 At Desert Vista, Mother was evaluated by two professionals
who disagreed on the level of treatment that Mother required. Thereafter,
the superior court held an evidentiary hearing on another petition for court-
ordered treatment to determine whether Mother met the seriously mentally
ill criteria, which would require different treatment. The court found that
as a result of her mental disorder, Mother was “persistently or acutely
disabled and a danger to self,” and there were no appropriate alternatives
to treatment. The court therefore ordered combined inpatient and
outpatient treatment. The record does not reflect that Crisis Prep
employees evaluated or provided services to Mother after May 2014.

¶9 In May 2015, Mother’s involuntary treatment order expired,
and she was released. On August 10, 2015, Mother voluntarily sought
treatment from Recovery Innovations again for concerns of danger to self.
Recovery Innovations’ staff assessed Mother and found her to be a danger
to others and in need of emergency hospitalization. Mother was transferred
to Desert Vista Hospital and a psychiatrist there petitioned for court-
ordered treatment. Mother was discharged to her home and the petition
was dismissed when the psychiatrist at Desert Vista Hospital informed the
court that he could not proceed with the petition. Tragically, Mother
drowned the twin boys five days later.

¶10 One year after the boys’ deaths, Avitia filed a wrongful death
claim against the state, Maricopa County, and numerous healthcare
providers. As to Crisis Prep, Avitia’s claims included negligence; medical
negligence; negligent oversight, training, retention, and supervision; and
respondeat superior liability. Avitia asserted that Crisis Prep had a duty to
report Mother’s abuse or neglect of the twins and had not done so. He also
claimed that Crisis Prep failed in its common law duty to warn and protect
the boys.

¶11 However, during Avitia’s deposition, he admitted that when
he would pick up his twins from Mother’s parents’ homes, “they were
happy . . . always smiling,” and that there were no “signs of abuse or
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Opinion of the Court

anything like that towards the kids.” Avitia also stated that throughout the
custody arrangement, he did not see any neglect of the twins and believed
that Grandmother and stepfather provided a stable environment for them.

¶12 On motion for summary judgment brought by Crisis Prep and
another healthcare provider, the superior court directed entry of final
judgment in favor of Crisis Prep on all claims. The court found that Crisis
Prep did not have a duty to report Mother’s condition to the Department of
Child Safety or any other state agency given that Mother was undergoing
court-ordered treatment. Avitia timely appealed from this decision.

¶13 The court of appeals affirmed the superior court’s decision to
grant Crisis Prep’s motion for summary judgment. Avitia v. Crisis
Preparation and Recovery Inc., 254 Ariz. 213, 215 ¶¶ 1–2 (App. 2022). The
court of appeals addressed Avitia’s two claimed sources of Crisis Prep’s
potential duty: (1) a statutory duty to report under § 13-3620(A); and (2) a
common law duty to warn and protect foreseeable victims as recognized by
Hamman and Little. Id. at 218–21 ¶¶ 25–39. In addressing the statutory
duty, the court explained that under § 13-3620(A), Crisis Prep personnel
had the duty in April or May of 2014 (over a year before the twins’ deaths)
to report “if they reasonably believed the twins were being, or had been,
abused or neglected by Mother.” Id. at 219 ¶ 28. However, the court found
such a case did not present itself, and therefore Crisis Prep had no statutory
duty to report under § 13-3620(A). Id. In addressing the common law duty
based on a special relationship with Mother, the court declined to expand
the duty “into one to warn and protect others based solely on
foreseeability” because of subsequent precedent from this Court. Id. at 221
¶ 39 (citing Gipson v. Kasey, 214 Ariz. 141 (2007); Quiroz v. ALCOA Inc., 243
Ariz. 560 (2018); Dinsmoor v. City of Phoenix, 251 Ariz. 370 (2021)).

¶14 Avitia petitioned this Court for review of (1) whether the
statutory duty to report child abuse or neglect under § 13-3620(A)
encompasses reporting a risk of future harm; and (2) whether a common
law duty to warn and protect foreseeable victims still exists after Gipson and
its progeny. As to the second question, Avitia specifically asserted that the
court of appeals erred by refusing to apply and questioning the viability of
the “controlling precedent,” Hamman and Little. These are important

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unresolved issues of statewide concern. We have jurisdiction under article
6, section 5(3) of the Arizona Constitution.

DISCUSSION

¶15 This Court reviews the meaning of Arizona statutes de novo.
Timothy B. v. Dep’t of Child Safety, 252 Ariz. 470, 474 ¶ 16 (2022). The
existence of a common law duty is also a question of law, which this Court
reviews de novo. Guerra v. State, 237 Ariz. 183, 185 ¶ 7 (2015). We take up
the two questions presented in turn.

A.

¶16 Our role in statutory interpretation is to give effect, whenever
possible, to the plain meaning of the words chosen by the legislature. BSI
Holdings, LLC v. Ariz. Dep’t of Transp., 244 Ariz. 17, 19 ¶ 9 (2018). We derive
meaning from the statutory provisions in their overall context. Stambaugh
v. Killian, 242 Ariz. 508, 509 ¶ 7 (2017).

¶17 Section 13-3620(A) provides in relevant part:

Any person who reasonably believes that a minor is or has
been the victim of physical injury, abuse, child abuse, a
reportable offense or neglect that appears to have been
inflicted on the minor . . . shall immediately report or cause
reports to be made of this information to a peace
officer . . . . For the purposes of this subsection, “person”
means:

1. Any physician, physician’s assistant, optometrist, dentist,
osteopathic physician, chiropractor, podiatrist, behavioral
health professional, nurse, psychologist, counselor or social
worker who develops the reasonable belief in the course of
treating a patient.

¶18 Crisis Prep does not dispute that its mental health
professionals are encompassed within the definition of “person” in this
statute. Rather, it denies that the statute imposes a duty to report about
possible future abuse.
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Opinion of the Court

¶19 Avitia asserts that Crisis Prep’s mental health professionals
who interacted professionally with Mother had a duty under this statute to
report neglect of the children to a peace officer. Avitia attaches great weight
to A.R.S. § 8-201(25)(a), which defines “[n]eglect” in relevant part as “[t]he
inability or unwillingness of a parent . . . of a child to provide that child
with supervision, food, clothing, shelter or medical care if that inability or
unwillingness causes substantial risk of harm to the child’s health or
welfare.”

¶20 But § 8-201(25)(a) is a definitional provision, which does not
itself create any duty. Rather, that definition is imported into § 13-3620
through subsection (P)(3) (“‘Neglect’ has the same meaning prescribed in
§ 8-201.”). Thus, Crisis Prep owes a duty only if it is created by § 13-3620.

¶21 As a threshold matter, it is not clear that § 13-3620 applies to
Crisis Prep at all in this context, because § 13-3620(A)(1) pertains only to
mental health professionals who develop a reasonable belief regarding
abuse or neglect “in the course of treating a patient.” It is not established
that Crisis Prep was ever “treating” Mother, rather than simply evaluating
her. Moreover, the statutory context suggests that the duty to report chiefly
applies when a minor patient who is being treated is abused or neglected.
See L.A.R. v. Ludwig, 170 Ariz. 24, 27 (App. 1991) (noting that the statute’s
purpose is to require “professionals who work with children to report
instances of suspected child abuse”); § 13-3620(A) (establishing a duty to
report injury, abuse, or neglect “that appears to have been inflicted on the
minor by other than accidental means”); § 13-3620(A)(5) (encompassing
“[a]ny other person who has responsibility for the care or treatment of the
minor”). Here, Crisis Prep never interacted with the children.

¶22 However, we need not resolve whether a duty ever arises
under § 13-3620(A) for a non-treating mental health professional to report
harm to third parties because the statute’s plain language clearly forecloses
such a duty here. The statute creates a duty only when a person subject to
the statute “reasonably believes that a minor is or has been the victim” of
injury, abuse, or neglect that “appears to have been inflicted on the minor.”
§ 13-3620(A) (emphasis added). That language is present and past tense,
meaning that the belief pertains to existing or past circumstances, not
speculation regarding the future.

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¶23 Avitia presents no evidence suggesting that neglect or abuse
had occurred in the past or was occurring during the period in which Crisis
Prep was professionally interacting with Mother. Therefore, even if Crisis
Prep was “treating” Mother, it had no duty here because no evidence of
past or ongoing abuse existed. Grandmother cared for the twins when
Mother struggled with her mental health and, as far as Crisis Prep knew,
they were well cared for. Indeed, Avitia was in regular contact with the
children, and he testified at his deposition that he did not observe any abuse
or neglect. And notably, § 13-3620(A)(3) places the duty to report neglect
or abuse on the parent, stepparent, or guardian of the minor as well.

¶24 Section 13-3620(A) imposes important duties to report abuse
and neglect of children, but Avitia’s broad reading would create an
unintended incentive for mental health professionals to reflexively report
patients with children to the police or to the Department of Child Safety
anytime even a specter of harm arises. See Guerra, 237 Ariz. at 187 ¶ 20
(“Just as ‘[p]ublic policy may support the recognition of a duty of
care,’ . . . policy considerations may militate against finding a duty in
certain contexts.” (alteration in original) (quoting Gipson, 214 Ariz. at 145
¶ 23)). By its plain meaning, the statute did not impose such a duty on
Crisis Prep under the circumstances that existed while it was professionally
interacting with Mother.
B.

¶25 Avitia also argues that the common law imposes a duty on
mental health professionals to warn and protect foreseeable victims about
known dangers. In this case, such a duty would require warning caregivers
or others in order to protect the children.

¶26 Under Arizona law, a duty in the negligence context arises
either from special relationships or public policy, and we look primarily to
statutes and common law to create and define duty. Quiroz, 243 Ariz. at 563
¶ 2. The plaintiff bears the burden to establish that a duty exists. Id.
Whether a duty exists is a question of law and must be determined before
case-specific facts are considered. Id. at 564 ¶ 7.

¶27 Whether a duty exists between a non-treating mental health
professional and a patient is not a question before us. Assuming such a
duty exists, the question here is whether, and to what extent, that duty

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Opinion of the Court

extends to third parties. Resolving this question takes us down a circuitous
jurisprudential and statutory path.

¶28 In Hamman, the Court addressed the duty a psychiatrist owed
the parents of a child he treated, where the psychiatrist allegedly failed to
take action to prevent severe harm the child inflicted on his father. 161 Ariz.
at 58. The court of appeals had applied the rule set forth in Brady v. Hopper,
570 F. Supp. 1333 (D. Colo. 1983), aff’d, 751 F.2d 329 (10th Cir. 1984), that “a
psychiatrist incurs no duty to any third party unless his patient
communicates to the psychiatrist a specific threat against a specific person.”
Hamman, 161 Ariz. at 60.

¶29 This Court rejected the Brady framework, instead applying
Tarasoff v. Regents of University of California, 551 P.2d 334 (Cal. 1976), which
concluded that once a therapist determines, or reasonably should have
determined, that a patient poses a serious risk to commit violence against
others, the therapist bears a duty to exercise reasonable care to protect the
foreseeable victim of that danger. Hamman, 161 Ariz. at 63 (citing Tarasoff,
551 P.2d at 345). The Court adopted Tarasoff’s focus on foreseeability in
determining whether a duty exists, holding that “the duty extends to third
persons whose circumstances place them within the reasonably foreseeable
area of danger where the violent conduct of the patient is a threat.” Id. at 65.

¶30 Just after Hamman was decided, the legislature enacted A.R.S.
§ 36-517.02(A), which provided as follows:

There shall be no cause of action against a mental health
provider nor shall legal liability be imposed for breaching a
duty to prevent harm to a person caused by a patient, unless
both of the following occur:

1. The patient has communicated to the mental health
provider an explicit threat of imminent serious physical harm
or death to a clearly identified or identifiable victim or
victims, and the patient has the apparent intent and ability to
carry out such threat.

2. The mental health provider fails to take reasonable
precautions.

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This statute essentially adopted the Brady standard that was disavowed by
Hamman.

¶31 Subsequently, the court of appeals overturned § 36-517.02 in
Little. The court observed that the statute’s wording “removes any doubt
that [it] was intended to be the exclusive means of establishing liability in
this context,” thus purporting to overturn Hamman. Little, 186 Ariz.
at 101–02. The court held the legislature could not do so in light of article
18, section 6 of the Arizona Constitution, which provides in relevant part
that “[t]he right of action to recover damages for injuries shall never be
abrogated.” Id. at 105. It concluded that “§ 36-517.02 unconstitutionally
abrogates the common law cause of action established in Hamman.” Id.

¶32 Avitia argues that Hamman and Little are good law. We
disagree.

¶33 Our cases after Hamman have recognized that foreseeability,
upon which Hamman relied, is not an element in determining whether a
duty exists. In Gipson, the Court observed that a “fact-specific analysis of
the relationship between the parties is a problematic basis for determining
if a duty of care exists,” given that whether a duty exists is a question of
law. 214 Ariz. at 145 ¶ 21. Accordingly, the Court held, in clear and
categorical terms, “that foreseeability is not a factor to be considered by
courts when making determinations of duty, and we reject any contrary
suggestion in prior opinions.” Id. at 144 ¶ 15.

¶34 Quiroz presented a factual scenario pertinent to the present
case. There, a family in which the father brought home asbestos to which
he was exposed in the workplace sued the employer for negligence for the
death of another family member from mesothelioma. Quiroz, 243 Ariz.
at 563 ¶ 3. The plaintiff argued that the employer owed a duty to
foreseeable victims. Id. at 569 ¶ 36. We noted that although Gipson allowed
foreseeability in considering the factual questions of breach of duty and
causation in the negligence context, which are generally questions for the
jury, it eliminated its use in determining the legal question of whether a
duty exists. Id. at 565 ¶ 13. Because no special relationship existed between
the employer and members of the employee’s family, and public policy did
not establish a duty, the company had no duty to third parties. Id. at 579
¶ 90. We noted that “[p]ost-Gipson, to the extent our prior cases relied on
foreseeability to determine duty, they are no longer valid.” Id. at 565 ¶ 12.
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Opinion of the Court

¶35 Hamman expressly relied on foreseeability to establish a
psychiatrist’s duty to third parties. 1 161 Ariz. at 61 (“The danger reasonably
to be perceived defines the duty to be obeyed.”); id. at 65 (“We hold that the
duty extends to third persons whose circumstances place them within the
reasonably foreseeable area of danger . . . .”). Hamman is therefore one of
the cases whose holding does not survive Gipson and subsequent decisions,
it is not good law, and we overrule it. See Cal-Am Props. Inc. v. Edais Eng’g
Inc., 253 Ariz. 78, 81 ¶ 7 (2022) (overturning precedent that created a
foreseeability-based duty).

¶36 The partial dissent argues that we misread Hamman, as duty
in that decision relied entirely on the special relationship between
psychiatrist and patient. Infra ¶ 59. Although Hamman did predicate its
duty analysis on that special relationship, it went on to determine a duty to
third persons based on foreseeability. See Hamman, 161 Ariz. at 64 (holding
that when a psychiatrist determines or should reasonably have determined
that a patient poses a danger to third persons, “the psychiatrist has a duty
to exercise reasonable care to protect the foreseeable victim of that danger”
(first emphasis added)). The Court expressly rejected as “too narrow”
Brady’s rule against a duty to third parties in such circumstances. Id. at 63.

¶37 The partial dissent insists that Hamman’s foreseeability
analysis goes not to duty but to the “scope” of the duty. In this context, that
is a distinction without a difference: Hamman uses foreseeability precisely
to recognize a duty to third parties that would otherwise not exist. 161 Ariz.
at 64. In other words, foreseeability is the bootstrap by which a duty
between psychiatrist and patient based on a special relationship is extended
to third parties. The trial court’s grant of summary judgment under review
in Hamman was based only and entirely on duty, id. at 60, rebutting any

1 Hamman adopted the California Supreme Court’s foreseeability standard
to determine the existence of a duty. 161 Ariz. at 64. California courts often
take a more expansive view of their role in shaping public policy than we
do. Compare, e.g., Loomis v. Amazon.com LLC, 277 Cal. Rptr. 3d 769 (Cal. Ct.
App. 2021) (judicially imposing strict liability on Amazon for the products
it markets), with Quiroz, 243 Ariz. at 566 ¶ 19 (stating that “in the absence of
a statute, we exercise great restraint in declaring public policy”). Therefore,
we do not typically find California decisions persuasive in the context of
judicially made public-policy-based tort law.
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suggestion that the Court’s foreseeability analysis was inadvertent or mere
surplusage. Gipson subsequently held, contrary to prior rulings, that
foreseeability cannot be used in determining duty at all. 214 Ariz. at 144
¶ 15 (“To clarify, we now expressly hold that foreseeability is not a factor
to be considered by courts when making determinations of duty, and we
reject any contrary suggestion in prior opinions.”); accord Quiroz, 243 Ariz.
at 565 ¶¶ 12–13 (“To be clear, in eliminating foreseeability, Gipson changed
our duty framework by limiting the duty analysis to special relationships and
public policy,” thus marking “a sea change in Arizona tort law.”). We
therefore correctly overrule Hamman.

¶38 Likewise, because we overrule Hamman, Little’s conclusion
that Ҥ 36-517.02 unconstitutionally abrogates the common law cause of
action established in Hamman,” Little, 186 Ariz. at 105, is no longer viable.
Article 18, section 6 of the Arizona Constitution only protects common law
rights in existence at the time the Constitution was adopted or that are
based on those rights. See Torres v. JAI Dining Servs. (Phx.), CV-22-0142-PR,
slip op. at 7 ¶ 9 (Ariz. Oct. 16, 2023) (“Throughout over a century of
jurisprudence, this Court has never extended the anti-abrogation clause’s
protections to rights of action incognizable at statehood.”); Matthews v.
Indus. Comm’n, 254 Ariz. 157, 175 ¶ 36 (2022) (construing workers’
compensation rights for accidents and injuries as those recognized when
the Arizona Constitution was adopted); Cronin v. Sheldon, 195 Ariz. 531, 539
¶ 37 (1999) (rejecting anti-abrogation clause protection for a wrongful
discharge claim that “neither existed in 1912 when statehood was achieved,
nor [evolved] from common law antecedents”); see also A.R.S. § 1-201
(adopting the common law “only so far as it is . . . not repugnant to or
inconsistent with the . . . laws of this state”).

¶39 Hamman did not base its holding in any established common
law or public policy. Although Tarasoff, on which Hamman was based,
purported to trace its standard to Restatement (Second) of Torts § 315 (Am.
L. Inst. 1965), see Hamman, 161 Ariz. at 61–62 (citing Tarasoff, 551 P.2d
at 342–43), nothing in § 315 gives rise to a foreseeability-based duty
standard. Rather, § 315 recognizes a duty to control the conduct of a third
party to prevent harm to another based on a special relationship with the
third party. See Restatement (Second) § 315 cmt. b (“In the absence of either
one of the kinds of special relations . . . the actor is not subject to liability if
he fails, either intentionally or through inadvertence, to exercise his ability
so to control the actions of third persons as to protect another from even the
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most serious harm.”). The Court in Hamman itself exercised the policy
choice to reject the Brady standard, which applied that duty to mental health
professionals in specific circumstances, as “too narrow,” 161 Ariz. at 63, and
to instead adopt the Tarasoff foreseeability framework, id. at 64 (“We hold
that the standard originally suggested in Tarasoff is properly applicable to
psychiatrists.”). Little then erroneously divested the legislature of its
constitutional authority to modify this judicially proclaimed public policy,
and we therefore overrule it as well.

¶40 Although no foreseeability-based duty exists, we conclude a
limited duty of mental health professionals to third parties exists in certain
circumstances under statute and common law, as set forth below.

¶41 With respect to statutory sources for a duty, we note that the
parties did not brief whether § 36-517.02 would be restored if this Court
overturned Little. If so, that statute limits liability for mental health
providers to third parties as described above. Section 36-517.02 not only
limits such liability following Hamman, but it also embodies a statutory
public policy basis for such liability. In fact, the liability codified in the
statute is consistent with the scope of the common law liability.

¶42 Additionally, A.R.S. § 36-531(B) provides that if a mental
health evaluation reveals a danger to the patient or others, the medical
director of the agency conducting the evaluation, unless the patient seeks
voluntary treatment, shall petition for court-ordered treatment, unless the
county attorney does so.

¶43 Beyond statutory duties, a common law duty may be found
in parts of the Restatement, which we “generally follow . . . unless it
conflicts with Arizona law.” Quiroz, 243 Ariz. at 570 ¶ 41. We noted earlier
Restatement (Second) § 315, which recognizes a general duty to third
parties based on a special relationship. See Gipson, 214 Ariz. at 145 ¶ 19.
Restatement (Second) § 324A recognizes a duty to third parties under
specified circumstances where a person “undertakes, gratuitously or for
consideration, to render services to another which he should recognize as
necessary for the protection of a third person.” Restatement (Third) of Torts
§ 41(a) (Am. L. Inst. 2012) is more specific, providing that “[a]n actor in a
special relationship with another owes a duty of reasonable care to third
parties with regard to risks posed by the other that arise within the scope
of the relationship.” See Dinsmoor, 251 Ariz. at 376 ¶ 24 (holding that a duty
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arises only where a “known and tangible risk of harm” exists within the
special relationship). Restatement (Third) § 41(b)(4) defines that applicable
special relationship to include “a mental-health professional with patients.”
We do not speculate which, if any, of these Restatement sections apply to
the facts here, and admonish that they must be read in a way that does not
inject foreseeability into the duty framework and in concert with statutes
addressing the subject matter.

¶44 Here, Crisis Prep complied with its statutory duty under
§ 36-531 by petitioning for involuntary treatment for Mother based on its
evaluation. Following an evidentiary hearing, the court concluded that
Mother was a danger to herself but not to others, and then ordered
combined inpatient and outpatient treatment. Crisis Prep played no further
role following that court order.

¶45 On the common law duty to warn, the basis for Avitia’s
petition for review in this Court was that the court of appeals wrongly
failed to apply Hamman and Little. As we overturn those decisions here, no
grounds for establishing a common law duty remain, and we therefore
affirm the trial court’s order granting summary judgment for Crisis Prep.

CONCLUSION

¶46 Crisis Prep seeks attorney fees pursuant to Arizona Rule of
Civil Appellate Procedure 21, but it fails to state the basis for fees as
required by Rule 21(a)(2). It seeks sanctions for a frivolous petition for
review under Arizona Rule of Civil Appellate Procedure 25, but we
conclude the appeal is not frivolous. Attorney fees and sanctions are
therefore denied.

¶47 For the foregoing reasons, we vacate the court of appeals’
opinion although we approve much of its reasoning, and we affirm the trial
court’s grant of summary judgment.

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VICE CHIEF JUSTICE TIMMER, Concurring in Part, Dissenting in Part,
and Concurring in the Result

TIMMER, V.C.J., concurring in part, dissenting in part, and concurring in
the result.

¶48 We granted review of two questions: “1. Does the statutory
duty to report child abuse or neglect under A.R.S. § 13-3620(A) encompass
reporting a risk of future harm? 2. Does a common law duty to warn and
protect foreseeable victims still exist after Gipson v. Kasey, 214 Ariz. 141
(2007), and its progeny?” The majority answers the first question “no,” and
I agree entirely.

¶49 But although I agree with the ultimate disposition in this case,
I disagree with how the majority answers the second question, including its
decision to overrule Hamman v. County of Maricopa, 161 Ariz. 58 (1989),
rather than reconcile it with Gipson. Also, I disagree with the majority’s
decision to overrule Little v. All Phoenix South Community Mental Health
Center, Inc., 186 Ariz. 97 (App. 1995), which held that A.R.S. § 36-517.02
violates Ariz. Const. art. 18, § 6, the anti-abrogation clause. The anti-
abrogation issue was not raised or argued by either party. By jumping to
resolve the issue, the majority has decided a significant and nuanced issue
without the benefit of briefing from the parties or interested amici. In my
view, we should leave the fate of Little and § 36-517.02 for a future case.
A. The Holding In Hamman v. County of Maricopa Survives Gipson
v. Kasey.
¶50 The majority overrules Hamman, reasoning that because the
Court “relied on foreseeability to establish a psychiatrist’s duty to third
parties,” the decision cannot survive Gipson’s holding “that foreseeability is
not a factor to be considered by courts when making determinations of
duty.” Supra ¶ 35; Gipson, 214 Ariz. at 144 ¶ 15. With respect, I conclude
my colleagues misinterpret Hamman and the principal case it relied on,
Tarasoff v. Regents of University of California, 551 P.2d 334 (Cal. 1976). Neither
case based the duty determination on foreseeability. Consequently, in my
view, Gipson and Hamman can peaceably coexist.

¶51 To understand the interplay between Gipson and Hamman, I
start with Tarasoff, which “has been widely accepted (and rarely rejected)
by courts and legislatures . . . as a foundation for establishing duties of
reasonable care” for mental health professionals to warn or otherwise
protect potential victims from patients displaying violent intentions
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 AVITIA v. CRISIS PREPARATION AND RECOVERY INC.
VICE CHIEF JUSTICE TIMMER, Concurring in Part, Dissenting in Part,
and Concurring in the Result

towards others. Peter F. Lake, Revisiting Tarasoff, 58 Alb. L. Rev. 97, 98
(1994); see also Hamman, 161 Ariz. at 61 (describing Tarasoff as a “landmark”
decision). There, graduate student Prosenjit Poddar confided to Dr. Moore,
his university-employed psychologist, that he intended to kill Tatiana
Tarasoff, who had spurned Poddar’s romantic advances. See People v.
Poddar, 518 P.2d 342, 344 (Cal. 1974); Tarasoff, 551 P.2d at 339. Although Dr.
Moore reported the threat to campus police, who briefly detained Poddar,
no one told Tatiana, her parents, or others likely to warn her of the threat.
See Tarasoff, 551 P.3d at 339–40, 342. Poddar murdered Tatiana two months
later. Id. at 339.

¶52 The relevant issue before the California Supreme Court in the
subsequent negligence lawsuit filed by Tatiana’s parents was whether the
psychologist owed a duty of care to Tatiana. Id. at 342. Although California
courts generally found a duty of care owed “to all persons who are
foreseeably endangered” by a person’s unreasonably dangerous conduct—
a principle soundly rejected by Gipson—the Tarasoff court expressly
refrained from considering foreseeability in determining whether a duty
existed there. See id. at 342–43 (quoting Rodriguez v. Bethlehem Steel Corp.,
525 P.2d 669, 680 (Cal. 1974)). It explained that when the claim is for failing
to control a dangerous person’s conduct, or to warn others of such conduct,
the common law traditionally imposes liability only when the defendant
has a “special relationship” with the dangerous person or the victim. Id.

¶53 Relying on the Restatement (Second) of Torts (“Restatement
2d”) § 315 (Am. L. Inst. 1965), the court concluded that the relationship
between a psychologist and a patient constitutes a “special relationship”
that supports imposing an affirmative duty of care on the psychologist for
the benefit of third parties presently endangered by the patient. See id.
at 343, 345–46; see also Quiroz v. ALCOA Inc., 243 Ariz. 560, 565 ¶ 14 (“[D]uty
in Arizona is based on either recognized common law special relationships
or relationships created by public policy.”); Gipson, 214 Ariz. at 145 ¶ 19
(recognizing that the “special relationships” in Restatement 2d § 315 can
give rise to a duty). It therefore left for a future case “whether foreseeability
alone is sufficient to create a duty to exercise reasonabl[e] care to protect a
potential victim of another’s conduct.” Tarasoff, 551 P.2d at 343; see also
Restatement (Third) of Torts (“Restatement 3d”) § 41 cmt. g (Am. L. Inst.
2012) (“The seminal case of [Tarasoff] recognized a special relationship
between a psychotherapist and an outpatient, and a corresponding duty of
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 AVITIA v. CRISIS PREPARATION AND RECOVERY INC.
VICE CHIEF JUSTICE TIMMER, Concurring in Part, Dissenting in Part,
and Concurring in the Result

care on the part of the psychotherapist to third parties whom the patient
might harm.”).

¶54 Tarasoff separately addressed the scope of the psychologist’s
duty and in that context alone discussed foreseeability. See id. at 345. It
concluded that “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.” Id.; see also
Hamman, 161 Ariz. at 63 (characterizing the Tarasoff quote as commenting
on the “scope of a psychiatrist’s duty”). Because Poddar identified Tatiana
as his intended victim, the court concluded she was owed a duty as the
foreseeable victim. See Tarasoff, 551 P.2d at 345.

¶55 Tarasoff’s use of the word “foreseeable” triggers Gipson
warning bells. Indeed, the majority seizes on this language to find Tarasoff,
and by extension Hamman, inconsistent with Gipson. See supra ¶ 33. But
read in context, the California Supreme Court used the word in explaining
the conduct required by the psychologist’s duty—protecting the dangerous
patient’s intended victim—once the psychologist knows or should know
the patient poses a serious danger of violence to that person. See Martinez
v. Woodmar IV Condos. Homeowners Ass’n, 189 Ariz. 206, 211 (1997)
(“[F]oreseeable danger [does] not dictate the existence of duty but only the
nature and extent of the conduct necessary to fulfill the duty.”), cited with
approval in Gipson, 214 Ariz. at 144 ¶ 17; Markowitz v. Ariz. Parks Bd., 146
Ariz. 352, 355 (1985) (stating that “the existence of a duty is not to be
confused with details of the standard of conduct”), cited with approval in
Gipson, 214 Ariz. at 145 ¶ 21. The court could have substituted the words
“intended victim” or “identified victim” for “foreseeable victim” without
altering its meaning. See Hamman, 161 Ariz. at 62 (describing Tarasoff as
imposing a duty on the psychologist to protect the patient’s “intended
victim”); Brady v. Hopper, 570 F. Supp. 1333, 1336 (D. Colo. 1983), aff’d, 751
F.2d 329 (10th Cir. 1984) (relying on Tarasoff and describing that case as
imposing a duty to protect a dangerous patient’s “intended victim”).
Importantly, the existence of a “foreseeable victim” did not establish the
basis for duty, which, as explained, was solely the special relationship
between the psychologist and the patient. Cf. Quiroz, 243 Ariz. at 564 ¶ 8
(describing a duty based on foreseeability as existing when regardless of
the existence of a special relationship, “a defendant realizes or should
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 AVITIA v. CRISIS PREPARATION AND RECOVERY INC.
VICE CHIEF JUSTICE TIMMER, Concurring in Part, Dissenting in Part,
and Concurring in the Result

realize that his conduct creates an unreasonable risk of harm to a
‘foreseeable plaintiff’”). Thus, Tarasoff is not inconsistent with Gipson.

¶56 This brings me to Hamman. There, Mr. and Mrs. Hamman
brought Mrs. Hamman’s adult son, John, to a hospital emergency
psychiatric center because he was exhibiting abnormal behavior. Hamman,
161 Ariz. at 59. This was nothing new. John had been hospitalized at the
same facility about five months earlier, where he expressed jealousy of Mr.
Hamman and had been administered a treatment plan to “’seclude and
restrain’ [him] from agitation, assaultive, or dangerous behavior.” Id.
Records from another hospitalization at a nearby facility related John’s
history of drug abuse and violent behavior. See id.

¶57 When the Hammans returned to the hospital with John, Mrs.
Hamman told Dr. Suguitan, a psychiatrist who had previously admitted
John to the hospital, that John had been engaging in violent behavior and
carrying pictures of headless animals. Id. She reported that she and her
husband were afraid of John, and she “begged” Dr. Suguitan to readmit
him for treatment. Id. After interviewing John, Dr. Suguitan refused to
admit him, and instead prescribed medication. Id. John did not tell Dr.
Suguitan he wanted or intended to harm the Hammans. See id. at 60. Dr.
Suguitan assured Mrs. Hamman that although John was schizophrenic and
psychotic, he was “harmless,” and the Hammans took him home. Id. at 59.
Two days later, John attacked and seriously injured Mr. Hamman. Id. at 60.

¶58 The issue before this Court was whether Dr. Suguitan owed a
duty to the Hammans absent communication of a specific threat by John.
See id. at 61. The Court adopted Tarasoff’s holding that “the psychiatrist-
patient relationship was sufficient under § 315 to support the imposition of
an affirmative duty on the defendant for the benefit of third persons.” Id.
at 62, 64. The Court did not base this duty on the foreseeability that John
would harm a third party. See id. But as the California Supreme Court did
in Tarasoff, the Hamman Court discussed foreseeability in the context of
defining the scope of the duty. See id. at 62–64. The Court ultimately rejected
Brady’s narrower duty framework, which requires a mental health
professional to protect or warn a third party only if the patient specifically
threatens that person. See id. at 63. It held that after a psychiatrist
determines or should have determined that “a patient poses a serious
danger of violence to others,” fulfilling that duty requires “exercis[ing]
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 AVITIA v. CRISIS PREPARATION AND RECOVERY INC.
VICE CHIEF JUSTICE TIMMER, Concurring in Part, Dissenting in Part,
and Concurring in the Result

reasonable care to protect the foreseeable victim of that danger.” Id. at 64.
Because sufficient facts showed that Dr. Suguitan knew or should have
known that John posed a serious danger of violence specifically to the
Hammans, the Court reversed the summary judgment entered for
defendants. See id. at 64–65.

¶59 The majority misinterprets Hamman by stating the Court
chose “Tarasoff’s focus on foreseeability” to recognize duty rather than
Brady’s narrower duty framework. See supra ¶¶ 28–29. This interpretation
is incorrect on a few levels. First, as explained, Tarasoff did not base duty
on foreseeability. Second, there was no “choice” made between Tarasoff and
Brady to recognize a duty. Brady, like Hamman, relied on Tarasoff and its
special relationship analysis to establish a mental health professional’s
duty. See Brady, 570 F. Supp. at 1336, 1338. Third, Hamman disagreed with
Brady only on its definition of the scope of the duty, not the basis for the
duty. While Brady requires the professional to protect or warn only a
person specifically threatened by the patient, id. at 1338, Hamman more
broadly requires the professional to protect or warn persons “subject to
probable risk of the patient’s violent conduct.” See Hamman, 161 Ariz. at 64;
see also Restatement 3d § 41 cmt. g (“The core holding of Tarasoff has been
widely embraced, but courts often disagree about specifics. The primary
points of contention are the content of the duty and to whom the duty is
owed.”). But both courts based duty on the special relationship between a
mental health professional and a patient, and only described the beneficiary
of the duty in identifying the scope of the duty. See Hamman, 161 Ariz. at 64;
Brady, 570 F. Supp. at 1338.

¶60 The majority responds to my points by disagreeing that
Hamman’s holding rested on the scope of a mental health professional’s
duty rather than the existence of that duty. See supra ¶ 37. It characterizes
Hamman as “us[ing] foreseeability precisely to recognize a duty to third
parties that would otherwise not exist.” See id. For the reasons I have
explained, I disagree that Hamman rested the existence of duty on
foreseeability. But more pointedly, Hamman itself stated it was deciding the
scope of the duty. See Hamman, 161 Ariz. at 58 (“We granted the plaintiffs’
petition for review to determine the nature and extent of a psychiatrist’s
duty to third parties injured by the psychiatrist’s patient.”). And tellingly,
the pertinent analysis discussing the “foreseeable victim” appears under
the heading, “Standard.” See id. at 63–64.
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 AVITIA v. CRISIS PREPARATION AND RECOVERY INC.
VICE CHIEF JUSTICE TIMMER, Concurring in Part, Dissenting in Part,
and Concurring in the Result

¶61 For these reasons, I answer the second question posed to us
in this case, “yes.” A mental health professional has a common law “duty
of reasonable care to third parties with regard to risks posed by the [patient]
that arise within the scope of the relationship.” Restatement 3d § 41; see also
Hamman, 161 Ariz. at 64. Thus, if “a patient poses a serious danger of
violence to others,” the professional owes an affirmative duty to warn or
otherwise protect those readily identifiable would-be victims. See Hamman
161 Ariz. at 64; Restatement 2d § 315; Restatement 3d § 41 (replacing
Restatement 2d § 315). Whether the professional breached that duty by
failing to warn or otherwise protect an identifiable victim, and whether the
professional’s conduct caused injury, depends on the facts of the case and
is not part of the duty analysis. See Gipson, 214 Ariz. at 145 ¶ 21.

¶62 Turning to this case, Crisis Prep had a special relationship
with Mother, which imposed on it an affirmative duty of reasonable care to
third parties. Restatement 3d § 41; Hamman, 161 Ariz. at 64. If during the
relationship Crisis Prep determined or should have determined that
Mother posed a serious danger of violence to others, it was duty-bound to
warn identifiable would-be victims of that danger or take other protective
measures. See Hamman, 161 Ariz. at 64.

¶63 But the scope of Crisis Prep’s duty did not extend to the twins.
As we concluded in Dinsmoor v. City of Phoenix, 251 Ariz. 370 (2021) a court
does not act contrary to Gipson by examining the case-specific facts to
decide whether “an unreasonable risk of harm” arose from a special
relationship to trigger a duty. Id. at 376–77 ¶ 27(“Identifying the risk within
the scope of the special relationship does not touch on concepts of breach
or causation, so there is no danger of conflating duty with those elements.”);
see also Dabush v. Seacret Direct LLC, 250 Ariz. 264, 272 ¶¶ 33–35 (2021)
(rejecting an argument that a court could not consider case-specific facts to
determine as a matter of law that defendant had not assumed a duty to
plaintiff). As recited by the majority, see supra ¶ 23, no facts suggest that
Crisis Prep knew or should have known that Mother presented a serious
danger of violence to her children. Therefore, Crisis Prep had no duty to
protect the twins, and for this reason alone, I would affirm the superior
court’s entry of summary judgment in favor of Crisis Prep.

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 AVITIA v. CRISIS PREPARATION AND RECOVERY INC.
VICE CHIEF JUSTICE TIMMER, Concurring in Part, Dissenting in Part,
and Concurring in the Result

B. Whether Little Should Be Overruled And Whether § 36-517.02
Violates The Anti-Abrogation Clause Is Not At Issue In This Case.

¶64 I also disagree with the majority’s decision to overrule Little
and decide that § 36-517.02 does not violate art, 18, sec. 6 of the Arizona
Constitution, the anti-abrogation clause. See supra ¶¶ 1, 36–38. The parties
did not raise the anti-abrogation issue or ask for this relief, and we never
asked for supplemental briefing. Although my colleagues asked the parties
at oral argument about these issues, neither party was fairly prepared to
answer. I would leave the anti-abrogation issue for a future case, which
would permit the parties and interested amici to weigh in.

¶65 On the merits, I disagree that Little should be overruled solely
because the Court overrules Hamman. See supra ¶ 38–39. As explained, I
would not overrule Hamman because it is not inconsistent with Gipson.
Thus, I would leave Little alone even if the issue had been raised.

¶66 I am also unpersuaded by the majority’s reasons for finding
that § 36-517.02 does not violate the anti-abrogation clause. I agree that the
clause “only protects common law rights in existence at the time the
Constitution was adopted or that are based on those rights,” see supra ¶ 38,
although I disagree with the majority’s narrow view of that principle’s
application. See Torres v. JAI Dining Servs. (Phx.), Inc., CV-22-0142-PR, slip
op. at 38–56 ¶¶ 54–78 (Ariz. Oct. 16, 2023) (Timmer, V.C.J., dissenting);
Matthews v. Indus. Comm’n, 254 Ariz. 157, 178–84 ¶¶ 55–73 (2022) (Timmer,
V.C.J., concurring in part and dissenting in part). Regardless, the majority
provides no analysis about whether a common law failure-to-warn action
existed or was based on rights that existed at statehood. Briefing from
parties on this issue would be illuminative, and we should await it in a
future case.
CONCLUSION

¶67 Gipson acknowledged that our case law has “created ‘some
confusion and lack of clarity . . . as to what extent, if any, foreseeability
issues bear on the initial legal determination of duty.’” 214 Ariz. at 144 ¶ 15
(quoting Riddle v. Ariz. Oncology Servs., Inc., 186 Ariz. 464, 466 n.3 (App.
1996)). Hamman may fall into this category by using “foreseeability”
imprecisely. But Hamman is reconcilable with Gipson because the former
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VICE CHIEF JUSTICE TIMMER, Concurring in Part, Dissenting in Part,
and Concurring in the Result

based duty on the special relationship between a mental health professional
and a patient, not on concepts of foreseeability. For this reason, I would not
overrule Hamman. Whether Little correctly held that § 36-517.02 violates the
anti-abrogation clause by narrowing the scope of duty outlined in Hamman
should be left for another case. Finally, because Crisis Prep’s duty did not
extend to the children in this case, I agree with my colleagues, albeit for
different reasons, that we should affirm the superior court’s summary
judgment in Crisis Prep’s favor.

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