Present: All the Justices
LILLIAN PARKER DELK
OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record No. 990175 January 14, 2000
COLUMBIA/HCA HEALTHCARE CORP., ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
William C. Andrews, III, Judge
In this appeal of a judgment sustaining a demurrer in a
medical negligence action, we consider, among other things,
whether the plaintiff pled causes of action in her third
amended motion for judgment for the defendants' negligent
failure to protect her from the intentional acts of a third
person, the defendants' negligent failure to control the acts
of a third person, negligent infliction of emotional distress,
and intentional infliction of emotional distress.
I.
The plaintiff, Lillian P. Delk, filed her third amended
motion for judgment against Columbia/HCA Healthcare
Corporation and Virginia Psychiatric Company, Inc., d/b/a
Columbia Peninsula Center for Behavioral Health. She alleged
that the defendants breached certain duties owed to her when
she was a patient at Columbia Peninsula Center for Behavioral
Health, a psychiatric hospital. The defendants filed
demurrers to the amended motion and asserted that the
plaintiff failed to allege viable causes of action against
them. The circuit court sustained the demurrers and entered a
judgment in favor of the defendants. Delk appeals.
II.
A.
Our inquiry is governed by settled principles that
control a circuit court's consideration of a demurrer. A
demurrer "admits the truth of all material facts that are
properly pleaded, facts which are impliedly alleged, and facts
which may be fairly and justly inferred from alleged facts."
Cox Cable Hampton Roads, Inc. v. City of Norfolk, 242 Va. 394,
397, 410 S.E.2d 652, 653 (1991); accord Plummer v. Center
Psychiatrists, Ltd., 252 Va. 233, 234, 476 S.E.2d 172, 173
(1996). A demurrer, however, does not admit the correctness
of the pleader's conclusions of law. Ward's Equip., Inc. v.
New Holland North America, Inc., 254 Va. 379, 382, 493 S.E.2d
516, 518 (1997).
When a circuit court sustains a demurrer to an amended
pleading which is complete in itself and fails to incorporate
by reference allegations in earlier pleadings, we will
consider only the allegations contained in the amended
pleading that was the subject of the demurrer sustained by the
judgment appealed from. Bell Atlantic-Virginia, Inc. v.
Arlington County, 254 Va. 60, 63 n.2, 486 S.E.2d 297, 299 n.2
(1997); Norfolk & W.Ry. Co. v. Sutherland, 105 Va. 545, 549-
2
50, 54 S.E. 465, 466 (1906); see also Breeding v. Hensley, 258
Va. 207, 212, 519 S.E.2d 369, 371 (1999); Trotter v. E.I.
Dupont de Nemours & Co., 124 Va. 680, 682-83, 98 S.E. 621, 622
(1919). Thus, we will recite only those facts contained in
Delk's third amended motion for judgment, and we will consider
only her assignments of error that relate to that pleading.
Delk assigned error to several rulings by the circuit
court that are contained in orders sustaining the defendants'
demurrers to her earlier motions for judgment: "the [t]rial
[c]ourt erred in ruling that all of the plaintiff's claims
were medical malpractice"; "the [t]rial [c]ourt erred in
holding that plaintiff had not sufficiently alleged actual
fraud"; and "the [t]rial [c]ourt erred in holding that
plaintiff had not sufficiently alleged punitive damages."
Delk failed to incorporate by reference in her third amended
motion for judgment allegations in her prior motions for
judgment and, therefore, we cannot consider these assignments
of error because they were not the subject of the circuit
court's judgment sustaining the demurrers to her third amended
motion for judgment.
B.
Delk, a married woman, was admitted as a patient to
Columbia Peninsula Center for Behavioral Health. The Virginia
Psychiatric Company, Inc., which operated the hospital under
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the assumed name of Columbia Peninsula Center for Behavioral
Health, was "an affiliated partnership or wholly-owned
subsidiary of Columbia/HCA Healthcare Corporation."
Delk was admitted to the hospital because of exacerbation
of her bipolar condition. * "[A]t the time of her
hospitalization, [Delk] was identified as being a potential
danger to herself, others, and property. [She] was further
deemed unable to meet the capacity of the ordinary demands of
her familial, occupational, and social environment.
Hospitalization was necessary for continued skill observation,
structured intervention, as well as medical and psychological
support."
Delk had a "history of mood disorders and
hospitalizations." She also had "a long-standing history of
psychiatric problems since the age of seventeen (17),
associated with sexual molestation as a young child and a gang
rape while a teenager." This information was "disclosed to
relevant staff." During "her hospitalization . . . [Delk] was
deemed by Columbia Peninsula Center for Behavioral Health to
be a high risk to herself and others and in need of constant
24-hour supervision and surveillance."
*
Bipolar disorder is a chronic disease which causes
patients to experience recurrent episodes of elation and
depression. Robert Jean Campbell, M.D., Psychiatric
Dictionary 97 (7th ed. 1996).
4
According to Delk's allegations, "[o]n or about February
26 or February 27, 1997, [a] male who is believed to have been
a patient at the Defendants' psychiatric facility at the time
of the sexual assault, and who was also believed to be HIV
positive, entered [Delk's] room on the acute care unit of
Columbia Peninsula Center for Behavioral Health and sexually
assaulted her. Although members of the nursing staff . . .
observed and documented the presence of this unauthorized
adult male in [Delk's] room, no further actions occurred from
the staff or management of Columbia Peninsula Center for
Behavioral Health . . . . No notation was made in [Delk's]
medical records regarding the sexual assault."
The hospital's "staff and administrators were under a
duty of care to supervise and control the assailant, who was
believed to be a patient in the acute care wing of the
Defendants' psychiatric facility at the time of the sexual
assault." Delk pled that the defendants "were well aware of
the assailant's troubled history, predisposition, disturbing
interaction with other patients and medical condition, yet
took no steps to protect [her] or the other potential victims.
Defendants breached this duty of care by allowing the
assailant to enter [Delk's] room on the acute care unit and
thus, allowing sexual misconduct to take place."
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Delk alleged that the sexual assault upon her was
foreseeable and avoidable. She pled that the defendants
committed acts of ordinary negligence by failing to adequately
protect her. She also alleged that the defendants committed
acts of ordinary negligence because they failed to control her
assailant.
Delk pled that "[d]efendant, Columbia Peninsula Center
for Behavioral Health, by and through its agents, employees,
and assigns, failed to undertake any actions although the
Defendant had knowledge that the alleged assailant adult male
patient was HIV positive. Further, Defendant, Columbia
Peninsula Center for Behavioral Health, did not relate
information to [Delk] . . . or any criminal authorities
concerning the sexual assault or her exposure to the HIV
virus. Defendant's conduct showed an utter disregard of
prudence and such conduct amounted to the complete neglect for
the safety of [Delk]. As a direct and proximate result of
Defendant's gross negligence . . . [Delk], and possibly other
members of her immediate family, have been exposed to the HIV
virus."
The plaintiff further alleged that as "a direct and
proximate result of Columbia Peninsula Center for Behavioral
Health's outrageous conduct, negligence and attempt to cover
up its negligence (through misleading and faulty notations in
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the medical records) in failing to adequately supervise the
Plaintiff, [Delk] suffered physical and bodily harm." She
claimed that as a result of defendant's "reckless, outrageous
and negligent infliction of emotional distress," she "suffered
severe mental, emotional and physical trauma." She alleged
that, as a result of "[d]efendant's extreme, reckless,
outrageous and intentional infliction of emotional distress,"
she "has suffered severe mental, emotional and physical
trauma."
III.
A.
Delk contends that she pled a cause of action for
negligence against the defendants arising out of their failure
to protect her and, therefore, the circuit court erred in
sustaining the defendants' demurrer to this claim.
Continuing, she asserts that the defendants had a duty of care
to supervise her on a 24-hour basis to insure her safety and
that a special relationship existed between her and the
defendants which created this duty of protection. Responding,
defendants assert that they had no duty to prevent any
criminal attack upon Delk because they claim that they did not
have a special relationship with her. Additionally, the
defendants contend that the criminal attack upon Delk was not
reasonably foreseeable.
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A plaintiff who seeks to establish actionable negligence
must plead the existence of a legal duty, violation of that
duty, and proximate causation which results in injury.
Marshall v. Winston, 239 Va. 315, 318, 389 S.E.2d 902, 904
(1990); Fox v. Custis, 236 Va. 69, 73-74, 372 S.E.2d 373, 375
(1988). Generally, a person does not have a duty to protect
another from the conduct of third persons. Burdette v. Marks,
244 Va. 309, 311, 421 S.E.2d 419, 420 (1992); Marshall, 239
Va. at 318, 389 S.E.2d at 904. This general rule, however,
does not apply when a special relationship exists (1) between
the defendant and the plaintiff which gives rise to a right to
protection to the plaintiff, or (2) between the defendant and
the third person which imposes a duty upon the defendant to
control the third person's conduct. A.H. v. Rockingham
Publishing Co., 255 Va. 216, 220, 495 S.E.2d 482, 485 (1998);
Burdette, 244 Va. at 312, 421 S.E.2d at 420; Dudley v.
Offender Aid & Restoration, 241 Va. 270, 276, 401 S.E.2d 878,
881 (1991); Fox, 236 Va. at 74, 372 S.E.2d at 375; Klingbeil
Management Group Co. v. Vito, 233 Va. 445, 447-48, 357 S.E.2d
200, 201 (1987).
We hold that the allegations contained in Delk's third
amended motion for judgment are sufficient to permit her to
fall within the limited exception to the general rule and,
thus, she pled a cause of action for negligence against the
8
defendants. Delk's amended motion contains sufficient
allegations which, if proven, would establish the existence of
a special relationship between her and Columbia Peninsula
Center for Behavioral Health and, thus, would give rise to a
duty on the part of the defendants to protect her from third
persons. For example, Delk alleged that the defendants knew
that: she was a danger to herself and others; she had a long
history of psychiatric problems associated with sexual
assaults upon her; Columbia Peninsula Center for Behavioral
Health deemed Delk to be a high risk to herself and others;
and she was in need of constant 24-hour supervision and
surveillance.
The defendants, relying principally upon A.H. v.
Rockingham Publishing Co., supra, assert that the sexual
assault upon Delk was legally unforeseeable. We disagree.
In Rockingham Publishing, we considered whether a
newspaper publishing company had a duty to warn a 13 or 14-
year old newspaper carrier of the danger of a criminal assault
by a third person while the carrier was delivering newspapers
in the early morning hours. The carrier, identified as A.H.,
delivered newspapers in the City of Harrisonburg on an
assigned route. A.H. was sexually assaulted by a man while
A.H. was delivering newspapers between 6:00 and 6:30 a.m. on
November 7, 1989. There had been three prior pre-dawn
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assaults of a sexual nature upon other Rockingham Publishing
carriers while they were delivering their newspapers, but none
of the prior assaults had occurred on or near A.H.'s route.
Rockingham Publishing knew about the prior assaults before the
assault on A.H. The first assault occurred about five years
before the assault on A.H., the second about four and a half
years before, and the third about four months earlier.
Rockingham Publishing, 255 Va. at 219, 495 S.E.2d at 484.
Even though we held that a special relationship existed
between A.H. and Rockingham Publishing, we stated:
"A court must still determine whether the danger of
a plaintiff's injury from such conduct was known to
the defendant or was reasonably foreseeable.
'[W]here the duty does exist [arising from a
requisite relationship], the obligation is not an
absolute one to insure the plaintiff's safety[;]
. . . . [t]here is . . . no liability . . . where
the defendant neither knows nor has reason to
foresee the danger or otherwise to know that
precautions are called for.' W. Page Keeton, et
al., Prosser & Keeton on the Law of Torts § 56, at
385 (5th ed. 1984)."
Id. at 220-21, 495 S.E.2d at 485. We concluded that the
assault upon A.H. was not foreseeable. We observed that
"the three prior sexual assaults on Rockingham
carriers in various locations in the City of
Harrisonburg in the five years preceding the assault
on the plaintiff were insufficient to raise a jury
issue of whether a sexual attack on the plaintiff
was reasonably foreseeable. This is not a case in
which it was shown that the prior assaults were at
or near the location of the plaintiff's assault, or
that they occurred frequently or sufficiently close
10
in time to make it reasonably foreseeable that the
plaintiff would be similarly assaulted."
Id.. at 222, 495 S.E.2d at 486.
Here, unlike the plaintiff in A.H. v. Rockingham
Publishing, Delk pled sufficient facts which, if established
at trial, would create a jury issue on the question whether
the assault upon her was reasonably foreseeable. Delk
essentially alleged that she was especially vulnerable to a
sexual assault because of her psychiatric problems and her
need for "constant 24-hour supervision and surveillance." The
defendants were aware of her particular vulnerabilities and
her psychiatric history. She also alleged that the defendants
were well aware of the assailant's troubled history,
predisposition, disturbing interaction with other patients,
and medical condition, and that "members of the nursing staff
of Columbia Peninsula Center for Behavioral Health observed
and documented the presence of this unauthorized adult male in
[Delk's] room," but took no action. She further alleged that
because of her "sexual abuse history and bipolar condition,
[she was placed] at an additional high risk to such
incidents."
B.
Delk contends that she pled a separate cause of action
against the defendants for their "negligent failure to control
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the assailant." Continuing, she asserts that the defendants
had a duty to control the assailant and, as a result of their
breach of this duty, she was assaulted by him. Responding,
the defendants assert that the circuit court properly
sustained their demurrers to Delk's claim that they failed to
control the assailant because Delk failed to plead in her
amended motion that the defendants had "taken charge" of the
assailant. We disagree with the defendants.
Section 315(a) of the Restatement (Second) of Torts
(1965), states in part:
"There is no duty so to control the conduct of a
third person as to prevent him from causing physical
harm to another unless
(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 . . . ."
Section 319 of the Restatement (Second) of Torts provides as
follows:
"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."
We have held that the aforementioned provisions of the
Restatement give rise to a duty in tort only if a special
relationship exists between a defendant who is charged with
negligence and the actor, and that this special relationship
is established when the defendant has taken charge or
12
exercised control over the actor. Fox, 236 Va. at 75, 372
S.E.2d at 376. We recently stated that "[i]t is a settled
rule of decision in this Court . . . that, in order to
establish a 'special relation' under Restatement § 315(a)
. . . a plaintiff must allege facts which, if proven, would
show that the defendant had 'take[n] charge' of a third person
within the meaning of § 319." Nasser v. Parker, 249 Va. 172,
179-180, 455 S.E.2d 502, 505 (1995). In Nasser, a plaintiff
filed an amended motion for judgment against a psychiatrist
and a psychiatric hospital and sought to recover damages for
intentional torts committed by a patient against a third
party. We held that the circuit court properly sustained the
defendants' demurrers to the plaintiff's amended motion
because the plaintiff failed to allege facts, which if proven,
would have shown that the defendants had taken charge of the
patient. Id. at 181, 455 S.E.2d at 506.
Here, we hold that the circuit court erred in sustaining
the demurrers to Delk's claim that the defendants were
negligent because they failed to control her assailant. As we
have already stated, Delk alleged that her assailant was
"believed to be a patient in the acute care wing of the . . .
psychiatric facility" and that the hospital staff was aware of
"assailant's troubled history, predisposition, disturbing
interaction with other patients and medical condition." There
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is no allegation here, as there was in Nasser, that the
assailant was in the hospital on a voluntary basis.
Because we are required at the demurrer stage of the
proceedings to view the allegations and the inferences
therefrom in the light most favorable to Delk, we must infer
from her allegations that the defendants exercised control
over her assailant and, thus, had taken charge of him because
he was a resident in the acute care wing of a psychiatric
hospital. Of course, at a subsequent trial, Delk will be
required to prove, with evidence, that the defendants had
taken charge of her assailant and that he was not in the
hospital on a voluntary basis.
IV.
Defendant Columbia/HCA Healthcare argues that it has no
legal duty to Delk because "Columbia/HCA is only alleged to be
a corporate affiliate of [Columbia Peninsula Center for
Behavioral Health] with no direct dealings with" Delk. We
will not consider this contention.
Code § 8.01-273(A) states in part that "[i]n any . . .
action at law, the contention that a pleading does not state a
cause of action or that such pleading fails to state facts
upon which the relief demanded can be granted may be made by
demurrer. . . . No grounds other than those stated
specifically in the demurrer shall be considered by the
14
court." Defendant Columbia/HCA Healthcare failed to assert
this contention in its demurrer and, thus, may not make this
assertion on appeal.
V.
A.
Delk argues that she pled a cause of action for
intentional infliction of emotional distress and, therefore,
the circuit court erred by sustaining the demurrer to that
claim. Responding, the defendants argue that Delk failed to
plead facts which would permit a jury to infer that they acted
with an intent to cause her emotional distress. We disagree
with the defendants.
In Russo v. White, 241 Va. 23, 26, 400 S.E.2d 160, 162
(1991), we stated that a plaintiff who seeks to recover
damages for intentional infliction of emotional distress must
plead, and subsequently prove by clear and convincing
evidence, that: the wrongdoer's conduct is intentional or
reckless; the conduct is outrageous and intolerable; the
alleged conduct and emotional distress are causally connected;
and the distress is severe. A plaintiff must allege each of
these elements with the requisite degree of specificity.
Jordan v. Shands, 255 Va. 492, 499, 500 S.E.2d 215, 219
(1998); Ely v. Whitlock, 238 Va. 670, 677, 385 S.E.2d 893, 897
(1989).
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We hold that Delk pled sufficient facts which if proven
at trial, would permit a finder of fact to find that the
defendants acted recklessly. It is common knowledge that HIV,
which can be transmitted sexually or through an exchange of
bodily fluids, can develop into AIDS, a fatal disease.
Certainly, a finder of fact could conclude that the defendants
acted recklessly if Delk presents evidence at a trial that the
defendants knew she may have been exposed to HIV, but failed
to inform her so that she could have taken preventive measures
to avoid transmission of the potentially fatal disease to her
husband.
We reject the defendants' contention that Delk failed to
assert a legally sufficient claim for damages. Delk
specifically alleged that "she has incurred and will incur in
the future hospital, doctors' and related bills in an effort
to be cured of [her] injuries." We must infer from this
allegation that Delk incurred medical treatment in the past
and will incur medical treatment in the future as a result of
her exposure to HIV. See Russo, 241 Va. at 28, 400 S.E.2d at
163.
B.
Delk argues that the circuit court erred in sustaining
the defendants' demurrer to her claim for negligent infliction
of emotional distress. She contends that she pled facts
16
which, if proven, would be sufficient to establish the
elements of this cause of action. Responding, the defendants
contend that Delk failed to state a claim of negligent
infliction of emotional distress because she failed to allege
a physical injury in her amended motion. We agree with the
defendants.
In Hughes v. Moore, 214 Va. 27, 197 S.E.2d 214 (1973), we
discussed the elements of a cause of action for negligent
infliction of emotional distress. We stated:
"We adhere to the view that where conduct is merely
negligent, not willful, wanton, or vindictive, and
physical impact is lacking, there can be no recovery
for emotional disturbance alone. We hold, however,
that where the claim is for emotional disturbance
and physical injury resulting therefrom, there may
be recovery for negligent conduct, notwithstanding
the lack of physical impact, provided the injured
party properly pleads and proves by clear and
convincing evidence that his physical injury was the
natural result of fright or shock proximately caused
by the defendant's negligence. In other words,
there may be recovery in such a case if, but only
if, there is shown a clear and unbroken chain of
causal connection between the negligent act, the
emotional disturbance, and the physical injury."
Id. at 34, 197 S.E.2d at 219; accord Myseros v. Sissler, 239
Va. 8, 9, 387 S.E.2d 463, 464 (1990).
Delk's conclusional allegation that she incurred "severe
mental, emotional and physical trauma" is not sufficient to
support a cause of action for negligent infliction of
emotional distress. Delk failed to plead with specificity
17
that she incurred a physical injury which was the natural
result of fright or shock proximately caused by the
defendants' alleged negligence. Delk fails to provide any
description of her physical injury in her amended motion.
Therefore, we hold that the circuit court did not err in
dismissing this claim.
VI.
We will affirm that portion of the circuit court's
judgment which sustained the defendants' demurrers to Delk's
cause of action for negligent infliction of emotional
distress. We will reverse the remaining portions of the
judgment, and we will remand this case to the circuit court so
that Delk may proceed on her claims for the following causes
of action: the defendants breached a duty of care owed to her
in that they failed to protect her from the assailant; the
defendants breached a duty of care owed to her because they
failed to control the assailant; and the defendants committed
acts which constituted intentional infliction of emotional
distress. We express no opinion on Delk's assignments of
errors which were not the subject of the demurrers to her
third amended motion for judgment.
Affirmed in part,
reversed in part,
and remanded.
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