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nally

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Supreme Court of California.

 

November 23, 1988.]

 

WALTER J. NALLY et al., Plaintiffs and Appellants, v. GRACE COMMUNITY CHURCH OF THE VALLEY et al., Defendants and Respondents

 

(Opinion {Page 47 Cal.3d 279}

 

by Lucas, C. J., with Mosk, Panelli, Arguelles and Eagleson, JJ., concurring. Separate concurring opinion by Kaufman, J., with Broussard, J., concurring.) by Lucas, C. J., with Mosk, Panelli, Arguelles and

Eagleson, JJ., concurring. Separate concurring opinion by Kaufman, J., with Broussard, J., concurring.)

 

COUNSEL

 

Edward Barker and Allen P. Wilkinson for Plaintiffs and Appellants.

 

Michael Norman Saleman as Amicus Curiae on behalf of Plaintiffs and

Appellants.

 

Cooksey, Howard, Martin & Tolen, Cooksey, Coleman & Howard,

David R. Cooksey, Jon A. Hammerbeck, Samuel E. Ericsson, Michael

Stokes Paulsen, Rex E. Lee, Gene C. Schaerr and Sidley & Austin for

Defendants and Respondents.

 

Robert R. Thompson, Gerald R. Thompson, Richard A. Moore, David

L. Llewellyn, Jr., Caldwell & Toms, Robert L. Toms, Dennis R. Kasper,

Edward McGlynn Gaffney, Jr., Douglas Laycock, Wendell R. Bird, Fry,

Joens & Fry, Timothy L. Joens, Ronald B. Pierce, Sarah Barringer

Gordon, Fine, Kaplan & Black, Ronald A. Zumbrun, Anthony T. Caso,

Timothy A. Bittle, Wilford W. Kirton, Jr., Oscar W. McConkie, Jr.,

Kirton, McConkie & Bushnell, Charles S. Vogel, Lori H. Dillman and

Dennis A. Ragen as Amici Curiae on behalf of Defendants and

Respondents.

 

Peter M. Shannon, Jr., Erin B. Isaacson and Keck, Mahin & Cate as

Amici Curiae. {Page 47 Cal.3d 283}

 

OPINION

 

LUCAS, C. J.

 

I. Introduction

 

On April 1, 1979, 24-year-old Kenneth Nally (hereafter Nally)

committed suicide by shooting himself in the head with a shotgun. His

parents (hereafter plaintiffs) filed a wrongful death action against Grace

Community Church of the Valley (hereafter Church), a Protestant

Christian congregation located in Sun Valley, California, and four Church

pastors: MacArthur, Thomson, Cory and Rea (hereafter collectively

referred to as defendants), alleging "clergyman malpractice," i.e.,

negligence and outrageous conduct in failing to prevent the suicide. (See

Code Civ. Proc., § 377.) Nally, a member of the Church since 1974,

had participated in defendants' pastoral counseling programs prior to his

death.

 

This case was previously before us in 1984 after the Court of Appeal

reversed summary judgment for defendants and remanded to the trial

court (hereafter Nally I). After we denied a hearing and depublished the

Nally I Court of Appeal opinion, the matter was sent back to the trial

court. At the close of plaintiffs' evidence at the trial on remand, the court

granted defendants' motion for nonsuit on all counts on the basis of

insufficiency of the evidence. fn. 1

 

The Court of Appeal again reversed and we granted review to address:

(i) whether we should impose a duty on defendants and other

"nontherapist counselors" (i.e., persons other than licensed

psychotherapists, who counsel others concerning their emotional and

spiritual problems) to refer persons to licensed mental health

professionals once suicide becomes a foreseeable risk, and (ii) whether

the evidence presented at trial supports plaintiffs' cause of action for

wrongful death based on defendants' alleged "intentional infliction of

emotional distress" on Nally.

 

II. Facts

 

A. Background

 

In 1973, while attending University of California at Los Angeles

(hereafter UCLA), Nally became depressed after breaking up with his

girlfriend. {Page 47 Cal.3d 284} He often talked about the absurdity of

life, the problems he had with women and his family, and he occasionally

mentioned suicide to his friends. Though Nally had been raised in a

Roman Catholic household, he converted to Protestantism while he was

a student at UCLA, and in 1974 he began attending the Church, the

largest Protestant church in Los Angeles County. Nally's conversion

became a source of controversy between him and his family. During this

time, Nally developed a close friendship with defendant Pastor Cory,

who was responsible for overseeing the ministry to the collegians

attending the Church. On occasion, Nally discussed his problems with

Cory, but the two never established a formal counseling relationship.

Between 1974 and 1979, Nally was active in defendants' various Church

programs and ministries.

 

Defendants offered pastoral counseling to church members in matters of

faith, doctrine and the application of Christian principles. During 1979,

defendant Church had approximately 30 counselors on its staff, serving a

congregation of more than 10,000 persons. Defendants taught that the

Bible is the fundamental Word of God containing truths that must govern

Christians in their relationship with God and the world at large, and in

their own personal lives. Defendant Church had no professional or

clinical counseling ministry, and its pastoral counseling was essentially

religious in nature. Such counseling was often received through

instruction, study, prayer and guidance, and through mentoring

relationships called "discipleships." According to the trial testimony of

defendant Senior Pastor MacArthur, "Grace Community Church does

not have a professional or clinical counseling ministry. We don't run a

counseling center as such. We aren't paid for that, and we don't solicit

that. We just respond as pastors, so what we do is on a spiritual level,

and a biblical level, or a prayer level ...." In essence, defendants held

themselves out as pastoral counselors able to deal with a variety of

problems -- not as professional, medical or psychiatric counselors.

 

In 1975, Nally was seeing a secular psychologist to discuss problems he

was having with his girlfriend. After graduating from UCLA in 1976, he

spent one semester at Biola College in La Mirada and was enrolled in the

Talbot Theological Seminary's extension on defendants' church grounds.

During this time, Nally became involved in a relationship with a girlfriend

who was a fellow Bible student. In January 1978, he established a

"discipling relationship" with Pastor Rea with whom he often discussed

girlfriend and family problems. They met five times in early 1978, but

when Nally lost interest in "discipling," the meetings were discontinued.

fn. 2 {Page 47 Cal.3d 285}

 

Following the breakup with his girlfriend in December 1978, Nally

became increasingly despondent. Pastor Cory encouraged him to seek

the counsel of either Pastor Thomson or Rea. The friendship with Cory

and the five discipling sessions with Rea in early 1978, constituted the full

extent of the "counseling" Nally received from defendants before the

spring of 1979.

 

In February 1979, Nally told his mother he could not "cope." She

arranged for him to see Dr. Milestone, a general practitioner, who

prescribed Elavil, a strong antidepressant drug, to relieve his depression.

Milestone also recommended Nally undergo a series of blood and

chemical tests. The record reveals that Milestone never referred Nally to

a psychiatrist.

 

By late February, Nally's depression did not appear to be subsiding, and

he was examined by Dr. Oda, a physician, who did not prescribe

medication or refer Nally to a psychiatrist, but suggested he undergo a

physical examination. Shortly thereafter, Nally spoke briefly in a drop-in

counseling session with Pastor Thomson about the marital tensions

between his parents and his problems with his current girlfriend. He told

Thomson that he considered suicide in 1974 while a student at UCLA.

fn. 3 The record shows that Thomson's conversation with Nally focused

on their common faith in scripture. During this time, Nally "decided to

serve the Lord through law," and was accepted at a Southern California

law school for the 1979 fall semester.

 

B. The Events Preceding Nally's Suicide

 

On March 11, 1979, Nally took an overdose of the antidepressant

prescribed by Dr. Milestone. Plaintiffs found him the following day and

rushed him to a hospital. At the hospital, Dr. Evelyn, Nally's attending

physician, advised plaintiffs that because their son "was actually suicidal,"

she could not authorize his release from the hospital until he had seen a

psychiatrist. The record indicates that plaintiffs, concerned about their

friends' reactions to their son's suicide attempt, asked Dr. Evelyn to

inform other persons that Nally had been hospitalized only for the

aspiration pneumonia he suffered after the drug overdose rendered him

unconscious.

 

On the afternoon of March 12, Pastors MacArthur and Rea visited Nally

at the hospital. Nally, who was still drowsy from the drug overdose,

{Page 47 Cal.3d 286} separately told both pastors that he was sorry he

did not succeed in committing suicide. Apparently, MacArthur and Rea

assumed the entire hospital staff was aware of Nally's unstable mental

condition, and they did not discuss Nally's death-wish comment with

anyone else.

 

Four days later, Dr. Hall, a staff psychiatrist at the hospital, examined

Nally and recommended he commit himself to a psychiatric hospital.

When both Nally and his father expressed reluctance at the thought of

formal commitment, Hall agreed to release Nally for outpatient treatment,

but warned Nally's father that it would not be unusual for a suicidal

patient to repeat his suicide attempt. Nally was released from the hospital

by Drs. Hall and Evelyn the next day.

 

On his release from the hospital on March 17, 1979, Nally arranged to

stay with Pastor MacArthur, because he did not want to return home.

MacArthur encouraged Nally to keep his appointments with Dr. Hall,

and arranged for him to see Dr. John Parker, a physician and Church

deacon, for a physical examination. Parker's testimony reveals that Nally

told him he was depressed, had entertained thoughts of suicide, and had

recently taken an overdose of Elavil. After examining Nally, Parker

believed he was a continuing threat to himself, and recommended Nally

commit himself to a psychiatric hospital. Nally, however, immediately

rejected the advice.

 

Parker testified that after Nally left his office, he telephoned Glendale

Adventist Hospital to determine whether any beds were available. He

then informed Nally's father that Nally needed acute psychiatric care and

that he should contact Glendale Adventist Hospital for information

concerning the psychiatric facilities. That same evening, Nally's father

telephoned Dr. Hall and told him that Parker had recommended

psychiatric hospitalization. Hall offered to come to the Nally residence

and arrange for Nally's involuntary commitment; the offer was rejected

by plaintiffs. The record shows that Mrs. Nally strongly opposed

psychiatric hospitalization for her son, saying, "no, that's a crazy hospital.

He's not crazy."

 

Eleven days before his suicide, Nally met with Pastor Thomson for

spiritual counseling. According to the record, Nally asked Thomson

whether Christians who commit suicide would nonetheless be "saved."

Thomson referred Nally to his training as a seminary student and

acknowledged "a person who is once saved is always saved," but told

Nally that "it would be wrong to be thinking in such terms." Following

their discussion, Thomson made an appointment for Nally to see Dr.

Bullock for a physical examination but did not refer Nally to a

psychiatrist.

 

Several days later, Nally moved back home. During his final week of life,

he was examined separately by Drs. Bullock and Evelyn. Dr. Bullock

testified {Page 47 Cal.3d 287} that he was concerned with Nally's

physical symptoms. (Nally complained of headaches and of the fact that

his arm was paralyzed because he had slept on it while he was

unconscious following the Elavil overdose.) Bullock suggested to Nally

that he admit himself to the hospital. Bullock, however, did not refer

Nally to a psychiatrist; instead, he subsequently conferred with Dr.

Evelyn, and both doctors agreed Nally needed further physical and

possibly psychiatric evaluation.

 

The day after his visit with Bullock, Nally encountered Pastor Thomson

in the Church parking lot. Nally told Thomson that he was thinking of

seeing a psychologist. Thomson recommended Nally contact Dr.

Mohline, director of the Rosemead Graduate School of Professional

Psychology. The following day, Nally spent approximately 90 minutes

with Mohline, who in turn referred him to the Fullerton Psychological

Clinic. Nally and his father went to the clinic the next day, and Nally

discussed possible therapy with Mr. Raup, a registered psychologist's

assistant. Raup testified he believed that Nally was "shopping for a

therapist or counselor or psychologist" and that he was not going to

return to the clinic. At the end of the week, Nally met with a former

girlfriend. She turned down an apparent marriage proposal by telling

Nally, "I can't marry you when you are like this. You have got to pull

yourself together. You have got to put God first in your life." The next

day, Nally left plaintiffs' home following a family disagreement. Two days

later, he was found in a friend's apartment, dead of a self-inflicted

gunshot wound.

 

III. Procedural Background

 

A. Allegations of the Complaint

 

As stated above, the Nally I Court of Appeal reversed, in a published

opinion, a summary judgment for defendants. In the first two counts of

the complaint, alleging wrongful death based on "clergyman malpractice"

and negligence, plaintiffs asserted that defendant Church was negligent in

the training, selection and hiring of its spiritual counselors. Plaintiffs also

claimed that following Nally's suicide attempt by drug overdose,

defendants failed to make themselves available to Nally for counseling

and "actively and affirmatively dissuaded and discouraged Nally from

seeking further professional psychological and/or psychiatric care."

 

The third count incorporated the negligence allegations by reference and

charged defendants with outrageous conduct for teaching certain

Protestant religious doctrines that conflicted with Nally's Catholic

upbringing and which "otherwise exacerbated" Nally's "pre-existing

feelings of guilt, anxiety and depression." (In this context, plaintiffs

claimed one of the defendants {Page 47 Cal.3d 288} told Nally that his

temporarily paralyzed arm caused by his suicide attempt was "God

punishing him" for his sin.) Plaintiffs also alleged that defendants' conduct

in counseling Nally was outrageous because they "taught or otherwise

imbued Nally, whom they knew to be depressed and having entertained

suicidal thoughts, with the notion that if he had accepted Jesus Christ as

his personal savior, he would still be accepted into heaven if he

committed suicide." Here, plaintiffs relied on Thomson's statement to

Nally 11 days before his suicide that one who is saved is "always saved,"

and on a short passage taken from a 12-part tape-recorded series,

entitled "Rich Thomson: Principles of Biblical Counseling," that was a

recording of Pastor Thomson's 1980 classroom lectures to seminary

students.

 

The tape-recorded passage was recorded 18 months after Nally's

suicide and stated, in pertinent part: "And the suicidal says, 'I am under

such tremendous pressure, now I've got to have pleasure of release!

Now! I don't care about the future! That's characteristic of human nature.

So it is very characteristic of the suicidal that it is his fear of judgment that

drives him into the death after which he will face that judgment, if he's an

unbeliever. And after which, if he is a believer, he'll go to be with the

Lord. ..."

 

B. Procedural History

 

After considering the above evidence, the trial court granted summary

judgment on the basis that plaintiffs had failed to raise a triable issue of

fact. The trial court stated at the time of the ruling, "Religion has nothing

to do with this case."

 

Although the Court of Appeal in Nally I reversed the summary judgment,

it did not separately discuss the first two counts alleging "clergyman

malpractice" and negligence, but instead focused on the third cause of

action for wrongful death based on intentional infliction of emotional

distress. The court held the third cause of action was adequately pleaded

and triable issues of fact remained as to whether Nally's suicide was

caused by defendants' allegedly outrageous conduct. It based reversal on

(i) a declaration of Nally's father that after Nally's hospitalization in

March 1979, he opened Pastor Cory's office door during one of the

pastor's counseling sessions with Nally and found Nally on his knees

crying and (ii) on the deposition testimony of Pastor MacArthur that

spiritual counseling (such as he gave Nally) could potentially cause "the

deepest depression." In addition, the court relied on the tape excerpt,

quoted in part above, as raising a reasonable inference defendants

followed a policy of counseling suicidal persons that suicide was an

acceptable alternative to living. The Nally I court rejected defendants'

First Amendment defense to the admissibility of the tape -- that the free

exercise of religion clause forbids imposing {Page 47 Cal.3d 289} liability

merely because a church teaches suicide does not lead to eternal

damnation.

 

Following the Court of Appeal's decision in Nally I, defendants

petitioned this court for review. We denied review and depublished the

opinion. The case was returned to the trial court.

 

At trial after remand, four experts testified for plaintiffs regarding the

general standard of care to be followed by the counseling community

when dealing with a suicidal individual. Each witness testified that

although standards varied among secular and denominational counselors,

a counselor has a duty to investigate the counseled person's suicidal

tendencies and to encourage that person to seek professional help once

suicide becomes foreseeable. Although plaintiffs attempted to show that

defendants violated these standards, the suggested standards are vague

and dependent on the personal predilections of the individual counselor

or denomination, and not officially or formally adopted by any organized

body of counselors. fn. 4

 

Plaintiffs introduced several counseling manuals that were apparently sold

in the Church bookstore as supporting an inference that defendants

advertised that its counselors were competent to treat a myriad of

emotional problems, and as evidence of defendants' inadequate training

as counselors. The manuals, however, while advocating "If a problem is

not organically caused ... the counselor can, with full assurance look to

God's Word for its proper solution," do not appear to have presented

defendants as anything other than pastoral counselors.

 

In ruling on the nonsuit motion, the trial court noted that Nally voluntarily

sought defendants' counsel and that the court had no compelling reason

to interfere in defendants' pastoral activities. The court stated: "There is

no compelling state interest to climb the wall of separation of church [and

state] and plunge into the pit on the other side that certainly has no

bottom." The court also found that even if the law were to impose a "duty

to refer," as urged by plaintiffs, the evidence failed as a matter of law to

show a breach of such duties and also failed as a matter of law, to prove

that defendants' conduct was the proximate cause of Nally's death.

Moreover, the court excluded, under Evidence Code section 352, fn. 5

the tape-recorded {Page 47 Cal.3d 290} excerpt from Pastor Thomson's

lecture series that Nally I had deemed essential to sustain the third count.

In excluding the evidence, the trial court specifically stated that

consideration of the tape would not have affected its ultimate finding.

 

The Court of Appeal again reversed, holding that although the "clergyman

malpractice" count failed to state a cause of action separate from the

"negligence" count, both could be construed as stating a cause of action

for the "negligent failure to prevent suicide" by "nontherapist counselors."

In this context, the Court of Appeal held that nontherapist counselors --

both religious and secular -- have a duty to refer suicidal persons to

psychiatrists or psychotherapists qualified to prevent suicides. Moreover,

the court held, imposition of a negligence standard of care on pastoral

counselors does not impinge on the free exercise of religion guaranteed

by the First Amendment, because the state's compelling interest in the

preservation of life justifies the narrowly tailored burden on religious

expression imposed by such tort liability. Although the Court of Appeal

found "the evidence sufficient to sustain a finding defendant Church

negligently breached its duty to train its counselees in their responsibilities

to refer suicidal counselors or to otherwise insure they were aware of the

responsibilities ...," the court also found that there existed "sufficient

evidence in the record for a reasonable person to have concluded some

or all of defendants' counselors actually exercised reasonable care in

attempting to refer Nally to mental health professionals authorized and

equipped to prevent an imminent suicide."

 

The Court of Appeal also concluded that the trial court's grant of nonsuit

for insufficiency of the evidence flowed from its erroneous exclusion of

the tape-recorded excerpt in which Pastor Thomson discussed his view

of suicide and salvation. The court determined that evidence of

Thomson's "religious belief" was "highly probative" of his past state of

mind and an indication of the content of the religious counseling he may

have given Nally. The majority rejected defendants' First Amendment

defenses to intentional tort liability, claiming that under the

law-of-the-case doctrine, Nally I was dispositive on whether the First

Amendment would operate to relieve defendants of liability.

 

Justice Cole dissented, asserting that the majority's holding rested on

broad policy determinations best left to the Legislature. The dissent

reasoned that the "essence of the duty imposed by the majority is to

require the {Page 47 Cal.3d 291} disclosures which existing law has

declined to require." Furthermore, the dissent disagreed with the

majority's imposition of liability on the third cause of action for wrongful

death based on the intentional infliction of emotional distress on Nally,

pointing out that the majority "ignored the record" and created an

unconstitutional distinction between different ecclesiastic purposes.

 

Our review of the record reveals the trial court correctly granted a

nonsuit as to plaintiffs' causes of action. Neither the evidence adduced at

trial nor well-established principles of tort law support the Court of

Appeal's reversal of nonsuit in this case. As we explain below, we need

not address the constitutional issues posed by defendants.

 

IV. Discussion

 

A. Nonsuit

 

1 A defendant is entitled to a nonsuit if the trial court determines that, as

a matter of law, the evidence presented by plaintiff is insufficient to permit

a jury to find in his favor. (Campbell v. General Motors Corp. (1982) 32

Cal.3d 112, 117-118 [184 Cal.Rptr. 891, 649 P.2d 224, 35 A.L.R.4th

1036].) "In determining whether plaintiff's evidence is sufficient, the court

may not weigh the evidence or consider the credibility of witnesses.

Instead, the evidence most favorable to plaintiff must be accepted as true

and conflicting evidence must be disregarded. The court must give 'to the

plaintiff's evidence all the value to which it is legally entitled, ... indulging

every legitimate inference which may be drawn from the evidence in

plaintiff's favor.'" (Id., at p. 118.) A mere "scintilla of evidence" does

not create a conflict for the jury's resolution; "there must be substantial

evidence to create the necessary conflict." (7 Witkin, Cal. Procedure (3d

ed. 1985) Trial, § 410, p. 413, italics in original.)

 

2 In reviewing a grant of nonsuit, we are "guided by the same rule

requiring evaluation of the evidence in the light most favorable to the

plaintiff." (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830,

839 [206 Cal.Rptr. 136, 686 P.2d 656].) We will not sustain the

judgment "'unless interpreting the evidence most favorably to plaintiff's

case and most strongly against the defendant and resolving all

presumptions, inferences and doubts in favor of the plaintiff a judgment

for the defendant is required as a matter of law.'" (Ibid., quoting Mason

v. Peaslee (1959) 173 Cal.App.2d 587, 588 [343 P.2d 805].) Keeping

in mind the foregoing standard of review, we now turn to the merits.

{Page 47 Cal.3d 292}

 

B. Cause of Action for Negligent Failure to Prevent Suicide

 

As stated above, the Court of Appeal characterized the first two counts

of plaintiffs' complaint (for clergyman malpractice and negligence) as

together stating a cause of action for the "negligent failure [by a

nontherapist counselor] to prevent suicide." Conceding that "research

did not uncover any court decision which has ruled one way or the

other specifically on the existence or scope of a nontherapist counselor's

duty toward suicidal counselees," and that it was venturing "along a

largely uncharted path," the Court of Appeal imposed a new and broad

duty of care on such counselors without any discussion of causation

under the present facts.

 

As Justice Cole pointed out in his dissent, however, the obligation

imposed by the majority is loosely phrased. Indeed, the Court of Appeal

used widely varying terminology in describing the duty of care arising

under the first two causes of action. At different points in its opinion, the

Court of Appeal referred to the duty imposed on nontherapist counselors

as a duty "to refer counselees to those who possess ... powers to prevent

an imminent suicide"; "to refer ... to those individuals or institutions

authorized and specially suited to prevent suicide"; "to take steps to place

a suicidal person in the hands of those to whom society has given the

authority and who by education and experience are in the best position to

prevent the suicidal individual from succeeding in killing himself";

"informing those in a position to prevent the counselee's suicide about the

factors suggesting the counselee's imminent plans to kill himself"; "to

insure their counselees also are under the care of psychotherapists,

psychiatric facilities, or others authorized and equipped to forestall

imminent suicide"; and finally, "to take appropriate measures to prevent

a suicide." 3a As we explain below, we reject the Court of Appeal's

imposition of a broad "duty to refer" on defendants and nontherapist

counselors in general.

 

Legal Requirements for Imposing a Duty of Care

 

a) Creation of a Duty of Care

 

4 "A tort, whether intentional or negligent, involves a violation of a legal

duty, imposed by statute, contract or otherwise, owed by the defendant

to the person injured. Without such a duty, any injury is 'damnum absque

injuria' -- injury without wrong. [Citations.]" (5 Witkin, Summary of Cal.

Law (9th ed. 1988) Torts, § 6, p. 61, italics in original.) Thus, in order to

prove facts sufficient to support a finding of negligence, a plaintiff must

show that defendant had a duty to use due care, that he breached that

duty, and that the breach was the proximate or legal cause of the resulting

injury. {Page 47 Cal.3d 293} (United States Liab. Ins. Co. v.

Haidinger-Hayes, Inc. (1970) 1 Cal.3d 586, 594 [83 Cal.Rptr. 418,

463 P.2d 770].)

 

5 Under traditional tort law principles, one is ordinarily not liable for the

actions of another and is under no duty to protect another from harm, in

the absence of a special relationship of custody or control. (Davidson v.

City of Westminister (1982) 32 Cal.3d 197, 203 [185 Cal.Rptr. 252,

649 P.2d 894]; Tarasoff v. Regents of University of California (1976) 17

Cal.3d 425, 435 [131 Cal.Rptr. 14, 551 P.2d 334, 83 A.L.R.3d

1166].) Moreover, in determining the existence of a duty of care in a

given case, we must consider several factors, including the "foreseeability

of harm to the injured party, the degree of certainty that he suffered

injury, the closeness of the connection between defendants' conduct

and the injury suffered, the moral blame attached to defendants, the

policy of preventing future harm, the extent of the burden to the

defendants and consequences to the community of imposing a duty to

exercise care with resulting liability for breach, and the availability, cost,

and prevalence of insurance for the risk involved." (Rowland v. Christian

(1968) 69 Cal.2d 108, 113 [70 Cal.Rptr. 97, 443 P.2d 561, 32

A.L.R.3d 496].) Thus, because liability for negligence turns on whether a

duty of care is owed, our first task is to determine whether a duty exists

in the present case.

 

b) Special Relationship

 

3b Although we have not previously addressed the issue presently

before us, we have imposed a duty to prevent a foreseeable suicide only

when a special relationship existed between the suicidal individual and the

defendant or its agents. For example, two cases imposed such a duty in

wrongful death actions after plaintiffs proved that the deceased

committed suicide in a hospital or other in-patient facility that had

accepted the responsibility to care for and attend to the needs of the

suicidal patient. (See Meier v. Ross General Hospital (1968) 69 Cal.2d

420 [71 Cal.Rptr. 903, 445 P.2d 519]; Vistica v. Presbyterian Hospital

(1967) 67 Cal.2d 465 [62 Cal.Rptr. 577, 432 P.2d 193].) In Meier, a

cause of action for negligence was held to exist against both the treating

psychiatrist and the hospital, and in Vistica, liability was imposed on the

hospital alone, the only named defendant in the case.

 

The Court of Appeal here would extend the previously carefully limited

precedent, relying initially for the creation of a duty of care (on

defendants and other nontherapist counselors) in the foregoing Meier and

Vistica cases. Indeed, the Court of Appeal specifically stated that "Logic

and policy both dictate the duty announced in those cases applies to

non-therapist counselors as well." We disagree. As defendants and amici

curiae point out, Meier {Page 47 Cal.3d 294} and Vistica are readily

distinguishable from the facts of the present case and, as we explain,

severely circumscribe the duty they create.

 

Both Meier and Vistica address the issue of a special relationship, giving

rise to a duty to take precautions to prevent suicide, in the limited context

of hospital-patient relationships where the suicidal person died while

under the care and custody of hospital physicians who were aware of the

patient's unstable mental condition. In both cases, the patient committed

suicide while confined in a hospital psychiatric ward. Liability was

imposed because defendants failed to take precautions to prevent the

patient's suicide even though the medical staff in charge of the patient's

care knew that the patient was likely to attempt to take his own life.

 

Neither case suggested extending the duty of care to personal or religious

counseling relationships in which one person provided nonprofessional

guidance to another seeking advice and the counselor had no control

over the environment of the individual being counseled. In sharp contrast,

Nally was not involved in a supervised medical relationship with

defendants, and he committed suicide well over two weeks after he was

released from the hospital against the advice of his attending psychiatrist

and physician.

 

Plaintiffs and the Court of Appeal also rely on Bellah v. Greenson (1978)

81 Cal.App.3d 614, 620-623 [146 Cal.Rptr. 535, 17 A.L.R.4th 1118],

as supporting the existence of a special relationship sufficient to impose a

duty of care on nontherapist counselors to refer a counselee to a licensed

mental health professional once the potential suicide becomes

foreseeable. As we explain, the Court of Appeal would unduly extend

the Bellah holding.

 

In Bellah, two years after their daughter's suicide, plaintiffs brought a

wrongful death action against a psychiatrist who had been treating the

daughter on an out-patient basis. Plaintiffs alleged the existence of a

psychiatrist-patient relationship between defendant and their daughter,

knowledge on the part of the defendant that their daughter was likely to

attempt suicide, and a failure by defendant to take appropriate

preventative measures "consonant with good medical practice in the

community." (Bellah, supra, 81 Cal.App.3d at p. 620.) The Court of

Appeal affirmed the trial court's order sustaining defendant's demurrer

after concluding that the action was barred by the one-year statute of

limitations contained in Code of Civil Procedure section 340.5.

 

In dictum, the Bellah court recognized that although plaintiffs' action was

time barred, they had stated a traditional medical malpractice cause of

action for the breach of a psychiatrist's duty of care to his patient. Bellah

stated that this duty may be imposed on the treating psychiatrist even

{Page 47 Cal.3d 295} though his patient committed suicide outside the

confines of a hospital. (81 Cal.App.3d at p. 620.) It is important to

recognize, however, that rather than creating a broad duty to refer, the

Bellah court simply recognized that plaintiffs had stated a "cause of action

for the breach by a medical practitioner of the duty of care owed to his

patient which has long existed in this state." In so doing, Bellah

distinguished Meier, supra, 69 Cal.2d 420, and Vistica, supra, 67 Cal.2d

465. The court stated: "Obviously, the duty imposed upon those

responsible for the care of a patient in an institutional setting differs from

that which may be involved in the case of a psychiatrist treating patients

on an out-patient basis." (Bellah, supra, at p. 620.) Indeed, Bellah

concluded that licensed medical professionals simply have no duty to

disclose to third persons "vague or even specific manifestations of suicidal

tendencies on the part of the patient who is being treated in an out-patient

setting ...." (Bellah, supra, at p. 621.)

 

In a related context, the Bellah plaintiffs claimed that Tarasoff, supra, 17

Cal.3d 425, "created a duty on the part of the defendant ... to breach the

confidence of a doctor-patient relationship by revealing to them

disclosures made by their daughter about conditions which might cause

her to commit suicide." (Bellah, supra, 81 Cal.App.3d at p. 620.) The

Bellah court, however, refused to accept plaintiffs' argument that Tarasoff

created a new duty on the part of the defendant "to warn others of the

likelihood of any and all harm which might be inflicted by a patient. ..."

(Id., at p. 621.)

 

Similarly, Bellah recognized that creating a duty on the part of a

psychiatrist to breach the confidence of a doctor-patient relationship by

revealing disclosures made about the suicidal intent of his patient would

unduly extend the Tarasoff holding, and "could well inhibit psychiatric

treatment." (Bellah, supra, 81 Cal.App.3d at p. 621.) Bellah reasoned

that in Tarasoff, we held only that "where a therapist knows that his

patient is likely to injure another and where the identity of the likely victim

is known or readily discoverable by the therapist, he must use reasonable

care to prevent his patient from causing the intended injury. Such care

includes, at the least, informing the proper authorities and warning the

likely victim. However, Tarasoff did not hold that such disclosure was

required where the danger presented was that of self-inflicted harm or

suicide. ... Instead, Tarasoff recognized the importance of the

confidential relationship which ordinarily obtains between a therapist and

his patient, holding that '... the therapist's obligations to his patient require

that he not disclose a confidence unless such disclosure is necessary to

avert danger to others. ... (Tarasoff, supra, p. 441, italics added.)'"

(Bellah, supra, 81 Cal.App.3d at pp. 620-621.)

 

Rather than create a duty to prevent suicide, Bellah (and Meier and

Vistica) recognized that a cause of action may exist for professional

malpractice {Page 47 Cal.3d 296} when a psychiatrist's (or hospital's)

treatment of a suicidal patient falls below the standard of care for the

profession, thus giving rise to a traditional malpractice action. fn. 6 Bellah

held that courts should not extend Tarasoff to require psychiatrists to

disclose the confidences of their patients when harm to a third party is not

contemplated. (Bellah, supra, 81 Cal.App.3d at pp. 620-621.) Thus,

contrary to the Court of Appeal's interpretation of Bellah, Vistica, and

Meier, none of these cases supports the finding of a special relationship

between Nally and defendants, or the imposition of a duty to refer a

suicidal person to a professional therapist as urged in the present case.

Indeed, on their limited facts, Bellah, Vistica and Meier weigh against

creating such a duty. With the foregoing in mind, we now turn to other

considerations articulated in Rowland v. Christian, supra, 69 Cal.2d 108,

112-113, and explain further why we should not impose a duty to

prevent suicide on defendants and other nontherapist counselors.

 

c) The Connection Between Defendants' Conduct and Nally's Suicide

and the Foreseeability of Harm

 

Other factors to consider in determining whether to impose a duty of care

on defendants include the closeness of the causal connection between

defendants' conduct and the injury suffered, and the foreseeability of the

particular harm to the injured party. (Rowland, supra, 69 Cal.2d at p.

113; see Davidson, supra, 32 Cal.3d 197, 209.)

 

Plaintiffs argue that Nally's statement to Pastors Rea and MacArthur

(while he was recovering from his suicide attempt at the hospital), "that he

was sorry he wasn't successful and that he would attempt suicide after his

release from the hospital," were "hidden dangers" that would have

affected his prognosis and treatment. Accordingly, plaintiffs reason that

Rea and MacArthur should have warned the hospital staff and plaintiffs

that Nally was still contemplating suicide after his initial attempt. We

disagree.

 

The closeness of connection between defendants conduct and Nally's

suicide was tenuous at best. fn. 7 As defendants observe, Nally was

examined by {Page 47 Cal.3d 297} five physicians and a psychiatrist

during the weeks following his suicide attempt. Defendants correctly

assert that they "arranged or encouraged many of these visits and

encouraged Nally to continue to cooperate with all doctors." (See United

States Liab. Ins. Co., supra, 1 Cal.3d 586, 594.) In addition, as stated

above, following Nally's overdose attempt Dr. Evelyn warned plaintiffs

that Nally remained suicidal and that they should encourage him to see a

psychiatrist on his release from the hospital. Plaintiffs also rejected both

Dr. Hall's and Dr. Parker's suggestion that Nally be institutionalized

because, according to plaintiffs, their son was "not crazy."

 

Nevertheless, we are urged that mere knowledge on the part of the

defendants that Nally may have been suicidal at various stages in his life

should give rise to a duty to refer. Imposition of a duty to refer Nally

necessarily would imply a general duty on all nontherapists to refer all

potentially suicidal persons to licensed medical practitioners.

 

One can argue that it is foreseeable that if a nontherapist counselor fails

to refer a potentially suicidal individual to professional, licensed

therapeutic care, the individual may commit suicide. While under some

circumstances counselors may conclude that referring a client to a

psychiatrist is prudent and necessary, our past decisions teach that it is

inappropriate to impose a duty to refer -- which may stifle all gratuitous

or religious counseling -- based on foreseeability alone. 6 Mere

foreseeability of the harm or knowledge of the danger, is insufficient to

create a legally cognizable special relationship giving rise to a legal duty to

prevent harm. (See Davidson, supra, 32 Cal.3d 197, 209.)

 

d) Public Policy Considerations

 

Imposing a duty on defendants or other nontherapist counselors to, in the

Court of Appeal's words, "insure their counselees are also under the

care of psychotherapists, psychiatric facilities, or others authorized and

equipped to forestall imminent suicide," could have a deleterious effect on

counseling in general. (See Bellah, supra, 81 Cal.App.3d at p. 621.)

Although both plaintiffs and the present Court of Appeal, in dictum,

exempt services such as "teen hotlines" which offer only "band aid

counseling," from a newly formulated standard of care that would impose

a "duty to refer," the indeterminate nature of liability the Court of Appeal

imposes on nontherapist counselors could deter those most in need of

help from seeking treatment out of fear that their private disclosures could

subject them to involuntary commitment to psychiatric facilities. {Page 47

Cal.3d 298}

 

3c As defendants, amici curiae, and the Court of Appeal dissenter

observe, neither the Legislature nor the courts have ever imposed a legal

obligation on persons to take affirmative steps to prevent the suicide of

one who is not under the care of a physician in a hospital. (See Katona v.

County of Los Angeles (1985) 172 Cal.App.3d 53, 59 [218 Cal.Rptr.

19]; see also, Searcy v. Hemet Unified School Dist. (1986) 177

Cal.App.3d 792, 804 [223 Cal.Rptr. 206] [school district owes duty to

safeguard student on school premises during school hours, but owes no

such duty once the student has departed for home].) Indeed, for all

practical purposes, a doctor to whom a nontherapist counselor refers a

suicidal person may refuse to take the patient. Furthermore, under the

Lanterman-Petris-Short Act (Welf. & Inst. Code, §§ 5200, 5201),

"any individual may" but is not required to institute involuntary

commitment proceedings.

 

We also note that the Legislature has exempted the clergy from the

licensing requirements applicable to marriage, family, child and domestic

counselors (Bus. & Prof. Code, § 4980 et seq.) and from the operation

of statutes regulating psychologists (id., § 2908 et seq.). In so doing, the

Legislature has recognized that access to the clergy for counseling should

be free from state imposed counseling standards, and that "the secular

state is not equipped to ascertain the competence of counseling when

performed by those affiliated with religious organizations." (Ericsson,

Clergyman Malpractice: Ramifications of a New Theory (1981) 16

Val.U.L.Rev. 163, 176.)

 

Furthermore, extending liability to voluntary, noncommercial and

noncustodial relationships is contrary to the trend in the Legislature to

encourage private assistance efforts. This public policy goal is expressed

in the acts of the Legislature abrogating the "Good Samaritan" rule.

Statutes barring the imposition of ordinary negligence liability on one who

aids another now embrace numerous scenarios. (See, e.g., Gov. Code, §

50086 [exempting from liability first aid volunteers summoned by

authorities to assist in search or rescue operations]; Health & Saf. Code,

§§ 1799.100, 1799.102 [exempting from liability nonprofessional

persons giving cardiopulmonary resuscitation].)

 

On occasion, when the courts have recognized a new duty of care

sufficient to impose liability for the breach thereof, they have noted that

the "wrongs and injuries involved were both comprehensible and

assessable within the existing judicial framework." (Peter W. v. San

Francisco Unified Sch. Dist. (1976) 60 Cal.App.3d 814, 824 [131

Cal.Rptr. 854] [refusing to impose liability on school district for

graduated plaintiff's inability to read and write]; see also, Dillon v. Legg

(1968) 68 Cal.2d 728, 742-747 [69 Cal.Rptr. 72, 441 P.2d 912, 29

A.L.R.3d 1316].) {Page 47 Cal.3d 299}

 

Even assuming that workable standards of care could be established in

the present case, an additional difficulty arises in attempting to identify

with precision those to whom the duty should apply. Because of the

differing theological views espoused by the myriad of religions in our state

and practiced by church members, it would certainly be impractical, and

quite possibly unconstitutional, to impose a duty of care on pastoral

counselors. Such a duty would necessarily be intertwined with the

religious philosophy of the particular denomination or ecclesiastical

teachings of the religious entity. (See Esbeck, Tort Claims Against

Churches and Ecclesiastical Officers; The First Amendment

Considerations (1986) 89 W.Va.L.Rev. 1, 82-84; Comment, Religious

Torts: Applying the Consent Doctrine as Definitional Balancing (1986)

19 U.C. Davis L.Rev. 949, 963-964, fn. 69; see also, Lemon v.

Kurtzman (1971) 403 U.S. 602 [29 L.Ed.2d 745, 91 S.Ct. 2105].) We

have previously refused to impose a duty when to do so would involve

complex policy decisions, and we are unpersuaded by plaintiffs that we

should depart from this policy in the present case. (See Thomson v.

County of Alameda (1980) 27 Cal.3d 741, 754-755 [167 Cal.Rptr. 70,

614 P.2d 728, 12 A.L.R.4th 701]; Bill v. Superior Court (1982) 137

Cal.App.3d 1002, 1012-1013 [187 Cal.Rptr. 625].)

 

e) Availability of Insurance

 

As several commentators observe, although lawsuits stemming from

spiritual counseling are few, a new type of "clergyman malpractice"

insurance has been offered to religious organizations to protect against

potential liability for spiritual counseling that causes injury. (See, e.g.,

Note, Intentional Infliction of Emotional Distress by Spiritual Counselors:

Can Outrageous Conduct Be "Free Exercise"? (1986) 84 Mich.L.Rev.

1296, 1300, fn. 12.) Apparently, such insurance provides coverage to

religious congregations and their pastors for damages caused by the

counseling activities of the pastors while acting within the scope of their

duties. (Ibid.) The value of such insurance, however, is unknown and

difficult to determine because few cases have been filed against the

clergy.

 

f) Conclusion

 

For the foregoing reasons, we conclude that plaintiffs have not met the

threshold requirements for imposing on defendants a duty to prevent

suicide. (Rowland, supra, 69 Cal.2d 108, 113.) Plaintiffs failed to

persuade us that the duty to prevent suicide (heretofore imposed only on

psychiatrists and hospitals while caring for a suicidal patient) or the

general professional duty of care (heretofore imposed only on

psychiatrists when treating a mentally disturbed patient) should be

extended to a nontherapist counselor {Page 47 Cal.3d 300} who offers

counseling to a potentially suicidal person on secular or spiritual matters.

 

In the present case, the Court of Appeal erroneously created a broad

duty to refer, and to hold defendants potentially accountable for Nally's

death based on their counseling activities would place blame

unreasonably and contravene existing public policy. fn. 8 Accordingly,

we conclude the trial court correctly granted defendants' nonsuit motion

as to the "clergyman malpractice" and negligence causes of action.

 

C. Cause of Action for Wrongful Death Based on Intentional Infliction of

Emotional Distress

 

a) Elements of the Tort

 

7 The elements of a cause of action for intentional infliction of emotional

distress are (i) outrageous conduct by defendant, (ii) an intention by

defendant to cause, or reckless disregard of the probability of causing,

emotional distress, (iii) severe emotional distress, and (iv) an actual and

proximate causal link between the tortious conduct and the emotional

distress. (Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148,

155, fn. 7 [233 Cal.Rptr. 308, 729 P.2d 743].) The "conduct to be

outrageous must be so extreme as to exceed all bounds of that usually

tolerated in a civilized community." (Davidson, supra, 32 Cal.3d at p.

209, quoting from Cervantez v. J.C. Penney Co. (1979) 24 Cal.3d 579,

593 [156 Cal.Rptr. 198, 595 P.2d 975].) As stated in part III hereof,

the Court of Appeal limited its discussion of the third cause of action for

intentional infliction of emotional distress, to the question of whether the

trial court erred in (i) excluding the tape pursuant to Evidence Code

section 352, and (ii) granting the nonsuit motion as to the intentional

infliction of emotional distress count.

 

We have found only one California case in which an appellate court

affirmed a trial court decision overruling a demurrer and allowing a cause

of action for wrongful death based on defendant's outrageous conduct in

causing a suicide. In Tate v. Canonica (1960) 180 Cal.App.2d 898, 909

[5 Cal.Rptr. 28], the court allowed a widow to state a cause of action for

wrongful death based on intentional infliction of emotional distress after

she alleged that defendant intentionally made threats and accusations

against her husband and such conduct was a substantial factor in bringing

about the husband's suicide. The Tate court rejected as inapplicable to

intentional torts, the defenses of supervening cause and contributory

negligence. (Id., at {Page 47 Cal.3d 301} p. 908.) 8 Thus, under Tate,

a plaintiff may resist a demurrer to a wrongful death action for intentional

conduct leading to suicide if he can allege facts sufficient to show that

defendant's conduct was outrageous and a substantial factor in the

decedent's suicide. (Tate, supra, 180 Cal.App.2d 898, 909.) With the

foregoing in mind, we now turn to the present case in order to determine

whether the trial court properly excluded the tape of Pastor Thomson's

1980 lecture under Evidence Code section 352, or whether the evidence

was relevant to proving plaintiffs' third cause of action consistently with

the Tate and Davidson, supra, 32 Cal.3d 197, standards.

 

b) Procedural Background

 

The Court of Appeal did not discuss defendants' First Amendment

defenses to the admissibility of the tape recording, because it believed it

was bound, under the law of the case doctrine (discussed below), by the

holding in Nally I that the First Amendment did not immunize defendants

from liability. The court, however, did not believe it was prevented from

examining the "sufficiency of the evidence introduced at trial to support

the third count."

 

The court found, as did the Court of Appeal in Nally I, that the tape

recording was essential to establishing plaintiffs' cause of action for

wrongful death based on intentional infliction of emotional distress, and

that its exclusion was therefore erroneous. The court stated that in

"construing the evidence including the tape recording most favorably

to plaintiffs we conclude a reasonable juror could have found the

counselors acted recklessly in a way which encouraged this suicide."

 

Plaintiffs, on the other hand, do not address the merits of the trial court's

exclusion of the tape but instead argue that the trial and appellate courts

are bound by the law-of-the-case doctrine insofar as it precludes

reconsideration of defendants' asserted constitutional defenses and the

objections concerning the viability of plaintiffs' third cause of action for

intentional infliction of emotional distress. Plaintiffs assert that we are

bound by the appellate court ruling in Nally I that the facts of this case

satisfy the requirements of the substantive tort of intentional infliction of

emotional distress.

 

c) Law-of-the-case Doctrine

 

9 Under this doctrine, "the decision of an appellate court, stating a rule

of law necessary to the decision of the case, conclusively establishes that

rule and makes it determinative of the rights of the same parties in any

subsequent retrial or appeal in the same case." (9 Witkin, Cal. Procedure

{Page 47 Cal.3d 302} (3d ed. 1985) Appeal, § 737, pp. 705-707.) The

rule is not invoked where the sufficiency of the evidence necessary to

sustain the judgment depends on the probative value or effect of the

evidence itself, and the evidence in the second trial is changed. (9 Witkin,

supra, § 750, at p. 718.) Similarly, the doctrine does not apply to points

of law that might have been, but were not determined on the prior

appeal. (9 Witkin, supra, § 752 at pp. 719-720; Tally v. Ganahl (1907)

151 Cal. 418, 421 [90 P. 1049].)

 

10 Recently, an additional reason for declining to apply the doctrine

was announced in Searle v. Allstate Life Ins. Co. (1985) 38 Cal.3d 425

[212 Cal.Rptr. 466, 696 P.2d 1308], in which we held: "The primary

purpose served by the law-of-the-case rule is one of judicial economy.

Finality is attributed to an initial appellate ruling so as to avoid the further

reversal and proceedings on remand that would result if the initial ruling

were not adhered to in a later appellate proceeding .... That reason for

the rule is inoperative when the court hearing the subsequent appeal

determines that there should be a reversal on a ground that was not

considered on the prior appeal. The fact that reversal is necessary in any

event frees us from the compulsion that the rule of law of the case might

otherwise impose on us to follow a ruling in the prior appeal that we now

perceive to be manifestly erroneous." (38 Cal.3d at p. 435.)

 

We perceive no obstacle under the law-of-the-case doctrine to reviewing

the evidentiary question regarding the tape recording's admissibility.

Contrary to plaintiffs' assertion that we are bound by a theoretical

imposition of liability on defendants based on the findings in Nally I, the

Court of Appeal there found only that plaintiffs had raised a triable issue

of fact sufficient to defeat a summary judgment motion, and therefore did

not determine liability as plaintiffs seem to imply.

 

11 As we explain below, however, we disagree with the Court of

Appeal's conclusion that the trial court improperly excluded the evidence

under Evidence Code section 352. Accordingly, it is unnecessary to

reach the broader constitutional issues raised by the parties, or the

validity of the Court of Appeal's holding that the constitutional defense

was barred by the law-of-the-case doctrine.

 

d) Analysis of the Evidentiary Ruling

 

In 1981, 18 months after Nally's suicide, Pastor Thomson taught a series

of classes of biblical counseling. The class sessions included question and

answer periods that were tape-recorded. During one session, a student

questioned Thompson on whether a person who committed suicide could

be "saved." Thompson replied, in a manner consistent with Reformation

{Page 47 Cal.3d 303} Protestant theology views regarding sin, grace and

faith, that a person neither acquires salvation by his own works nor

forfeits salvation by the commission of subsequent sins. Plaintiffs sought

to introduce the tape recording at trial on the basis that it provided

inferential proof of Thomson's advice to Nally during the three counseling

sessions in 1979.

 

The court held extensive hearings outside the presence of the jury on the

admissibility of the recording to determine whether its content was

relevant. During the in camera sessions, the court pointed out that even if

the recording were admitted, there was no evidence Thomson spoke

similar words to Nally during their counseling sessions or that such words

could have contributed in any way to, or proximately caused, Nally's

death. The court also observed that the best way to establish what

Thomson told Nally was through direct examination. Eventually, the court

ruled it would not admit the recording, "on the basis that its relevancy is

such that it would necessitate the undue consumption of time, would

create substantial danger of undue influence to the jury and could confuse

the issues and be misleading to the jury." (See Evid. Code, § 352.)

 

In determining whether the trial court properly exercised discretion in

excluding the tape, we consider the relationship between the evidence

and the relevant inferences to be drawn from it. (See Kessler v. Gray

(1978) 77 Cal.App.3d 284, 291 [143 Cal.Rptr. 496].) The Court of

Appeal stated that the tape recording was relevant to prove Pastor

Thomson's "own personal state of mind on the question of suicide and

suicide counseling and how other counselors were trained on these

issues." The court asserted that "the statements on the tape were

relevant to prove the probable content of the counseling the defendants

offered to the plaintiffs' suicidal son. The tape recordings tend to

establish the customary approach the Church's counselors used when

counseling suicidal individuals." These conclusions appear to misstate the

relevant evidence.

 

First, as the trial court found, the tape does not tend to prove that

defendants in any way encouraged Nally to commit suicide or acted

recklessly in disregard of Nally's emotional state prior to his suicide. (See

People v. Jones (1954) 42 Cal.2d 219, 222 [266 P.2d 38].) Although

there is some indication in the record that Nally may have attended some

of defendants' Bible classes between 1974 and 1979, there is no

evidence that Thomson was ever asked about salvation and suicide

during a lecture prior to 1980 or that he would have given a similar

response at that time if he had been so asked. Moreover, as Thomson

himself testified, his responses to questions in the classroom setting would

by their very nature differ from the way he handled an individual

counseling session because he would have considered {Page 47 Cal.3d

304} the emotional state of the individual and his particular counseling

needs during the counseling session.

 

In addition, the evidence was simply too temporally remote to establish

any causal connection with Nally's suicide. As Justice Cole's dissent in

the Court of Appeal observes, "what was said in an extemporaneous

answer, which did not precisely reflect the thoughts of Pastor Thomson,

given almost two years after the incident at issue is at best marginally

relevant to prove what was said at the time in question. The trial judge

made a carefully considered decision after considerable deliberation.

Clearly, there was a basis for the trial court's ruling that admission of the

tape created substantial danger of misleading the jury and prejudicing the

defendants." Based on the foregoing, we disagree with the Court of

Appeal's conclusion that the response given by Pastor Thomson to an

inquiry by a seminary student almost two years after Nally's suicide could

assist in establishing what Pastor Thomson told Nally during the individual

counseling sessions.

 

Finally, "California trial judges have considerable discretion under

Evidence Code section 352 to exclude evidence if its probative value is

substantially outweighed by its prejudicial effect." (Michail v. Fluor

Mining & Metals, Inc. (1986) 180 Cal.App.3d 284, 286 [225 Cal.Rptr.

403].) Because the record shows that the trial court carefully and

properly weighed the prejudicial effect of the evidence against its

probative value, the Court of Appeal erred in finding that a substantial

abuse of discretion occurred in excluding the evidence.

 

V. Conclusion

 

We conclude the trial court correctly granted a nonsuit on all causes of

action. The suicide of a young man in the prime of his life is a profound

tragedy. After considering plaintiffs' arguments and evidence, however,

we hold that defendants had no duty to Nally on which to base liability

for his unfortunate death.

 

The judgment of the Court of Appeal is reversed and the Court of

Appeal is directed to enter judgment affirming the judgment of nonsuit

and dismissing the action.

 

KAUFMAN, J.

 

I concur in the judgment that nonsuit was properly granted, but disagree

with the majority's holding that defendants owed no duty of care to the

plaintiffs. {Page 47 Cal.3d 305}

 

The majority appears to reject the proposition that defendants in this

matter, or "nontherapist counselors in general," have a duty to advise

potentially suicidal counselees to seek competent medical care. (Maj.

opn. at p. 292.) Yet the majority does not purport to "foreclose imposing

liability on nontherapist counselors, who hold themselves out as

professionals, for injuries related to their counseling activities." (Maj. opn.

at p. 300, fn. 8.)

 

In view of the majority's suggestion that a nontherapist counselor who

holds himself out as competent to treat a suicidal person owes a duty of

care to that person, I am baffled as to the basis or the necessity of the

majority's broad conclusion that "nontherapist counselors in general" do

not owe such a duty. The evidence in the record, viewed -- as the law

requires -- in plaintiffs' favor, demonstrates that defendants (1) expressly

held themselves out as fully competent to deal with the most severe

psychological disorders, including major depression with suicidal

symptoms, (2) developed a close counseling relationship with Kenneth

Nally for that very purpose, and (3) realized that Nally's suicide was at

least a possibility. Thus, the evidence was more than sufficient, in my

view, to trigger a minimal duty of care to Nally. What was fatally absent

from plaintiffs' case was not evidence of duty, but proof that defendants

breached that duty, and that such breach constituted a proximate cause

of Nally's suicide. Therefore, while I concur in the decision to reverse the

judgment of the Court of Appeal and to reinstate the judgment of nonsuit

and dismissal of the action, I strongly disagree with the conclusion that

defendants owed no duty of care in this matter.

 

Facts

 

While the majority faithfully chronicles the tragic sequence of events

which led to Nally's suicide, it quite inexplicably overlooks the substantial

evidence adduced by plaintiffs relating to the nature and extent of the

pastoral counseling offered by defendants. The picture which emerges

from the record is decidedly not that of a small band of simple pastors

who offered occasional counseling on minor matters to the faithful few.

The Grace Community Church (Church), at the time of the events in

question, employed about 50 pastoral counselors to serve a congregation

of over 10,000 persons. Pastoral counseling, as described in the

Church's 1979 annual report, constituted "a very important part of the

ministry at Grace Church." Church counselors offered their services not

only to congregants, but to large numbers of nonmembers as well. In

1979, the annual report noted, about 50 percent of those seeking

counseling came from outside the Church. Furthermore, while much of

the counseling to members was apparently of an ad hoc or "drop-in"

nature, more formal counseling was offered as well, with regularly

scheduled counseling "sessions" much like {Page 47 Cal.3d 306} those

between a therapist and a patient; indeed, the Church employed a

secretary whose responsibilities included the making and scheduling of

such counseling appointments. Moreover, in addition to individual

counseling, a number of Church pastors taught classes, published books

and sold tape recordings on the subject of biblical counseling. fn. 1

 

In addition to the foregoing, plaintiffs adduced substantial evidence

relating to the stated ability of the Church's pastoral counselors to deal

with serious emotional and psychological disorders. Several of the

counselors testified that they considered themselves fully competent to

treat a whole range of mental illnesses, including depression and

schizophrenia -- indeed, as Pastor Thomson testified, "any type of

emotional problem." Several of the counselors who testified, including

Pastors Rea, Barshaw and Thomson, claimed to possess not only

competence, but broad experience in the counseling of persons with

recurrent suicidal or even homicidal tendencies.

 

This asserted capacity to handle severe psychological disorders was also

reflected in a Church publication entitled "Guide For Biblical Counselors"

(Guide). Pastor Thomson was the author of the Guide, which served as a

basic text for aspiring biblical counselors and was required reading in

Thomson's class on biblical counseling. According to Pastor Thomson,

absent a gross physiological cause such as a brain tumor, "every

emotional problem" was within the competence of the pastoral counselor

to handle. Among the symptoms or disorders the Guide listed as falling

within the pastoral counselor's domain were "drug abuse, alcoholism,

phobias, deep depression, suicide, mania, nervous breakdown,

manic-depressive disorder and schizophrenia." The Guide devoted

separate sections to a number of these disorders, including suicide, with

hypothetical questions and answers interspersed throughout the text. One

such exchange read as follows: {Page 47 Cal.3d 307} "Question: You

mean I could counsel with an extreme problem like a suicidal tendency or

nervous breakdown or something like that? Answer: With the

proper understanding of God's Word to diagnose and treat the problems,

this could not only be done occasionally but could become the rule." fn. 2

 

Nally was well aware of defendants' self-proclaimed proficiency at

treating severe depression and suicidal symptoms. Nally was a student in

Pastor Thomson's course on biblical counseling, which used the Guide as

a text, and affirmatively sought out formal or informal pastoral counseling

from defendants during each of his several suicidal crises.

 

Moreover, the record leaves no doubt that defendants were aware of,

and affirmatively undertook to deal with, Nally's recurrent depression and

suicidal thoughts. In January 1978, Nally initiated a counseling

relationship with Pastor Rea. Rea testified that he had formal counseling

sessions with Nally during the first four months of 1978, as well as many

informal sessions both before and after that time. During these sessions,

according to Pastor Rea, Nally often appeared distraught and cried,

indicating that he "couldn't cope." Rea specifically recalled Nally's

statement to him in his office, "I just can't live this life." Rea, who

considered himself both qualified and experienced in the handling of

depressed and sucidal individuals, evaluated Nally as being "depressed."

fn. 3 {Page 47 Cal.3d 308}

 

In 1974, when Nally first joined the Church, he developed a close

friendship with Pastor Cory, who was responsible for overseeing the

ministry to the collegians attending the Church. In December 1978, after

Nally's breakup with his girlfriend, Cory became concerned about Nally's

apparent depression and referred him to Pastors Rea or Thomson for

counseling. In late February or early March of 1979, Nally did approach

Pastor Thomson and told him that he was depressed about his

relationship with his girlfriend and his family. Nally told Thomson that he

had once before considered suicide. Thomson, who considered himself

both qualified and experienced in the counseling of severe depression, felt

that there was an "intimation" of suicide in Nally's statements and

concluded that suicide was a "vague possibility." fn. 4 Although Thomson

testified that he took such intimations {Page 47 Cal.3d 309} "seriously,"

he concluded that he could continue to help Nally with his problems

through counseling and prayer.

 

Several weeks later, after Nally had in fact attempted suicide, Nally

approached Thomson on two more separate occasions. During their

second informal meeting, which lasted about an hour, Nally again,

according to Thomson, "intimated" suicide and again Thomson concluded

that suicide was a "possibility" which he continued to take "seriously." fn.

5 During the third meeting between Nally and Thomson, the latter

remained convinced that suicide was a "possibility." fn. 6 Although

Thomson was persuaded that Nally was depressed and intimat"ing"

suicide, he continued to believe that he could help him through biblical

counseling.

 

After Nally was released from the hospital following his suicide attempt in

March 1979, he went to stay with another Church counselor, Pastor

MacArthur. During long discussions over the next week, Nally discussed

his depression and thoughts of suicide, and MacArthur became

convinced that suicide was a real possibility. Indeed, MacArthur became

so concerned from these sessions that he advised Nally to see a

psychiatrist. One week after Nally left the MacArthur residence, his fears

were realized. On April 1, 1979, Nally committed suicide.

 

Discussion

 

In light of the foregoing factual background, I believe the conclusion is

inescapable that defendants owed a duty of care to Nally. That duty, in

my {Page 47 Cal.3d 310} view, was simply to recognize the limits of their

own competence to treat an individual, such as Nally, who exhibited

suicidal tendencies, and once having recognized such symptoms, to

advise that individual to seek competent professional medical care. The

record further demonstrates, however, and the majority correctly

concludes, that defendants neither breached their duty to Nally nor

contributed in any legally significant respect to his suicide. fn. 7

 

It is black-letter law that one may have an affirmative duty to protect

another from harm where a "special relationship" exists. (Williams v.

State of California (1983) 34 Cal.3d 18, 23 [192 Cal.Rptr. 233, 664

P.2d 137]; Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 48

[123 Cal.Rptr. 468, 539 P.2d 36]; Clarke v. Hoek (1985) 174

Cal.App.3d 208, 215-216 [219 Cal.Rptr. 845]; Rest.2d Torts, § 314;

Prosser & Keeton, Torts (5th ed. 1984) § 56, p. 374.) The critical

question, therefore, is whether there existed some special relationship

between Nally and defendants which would give rise to an affirmative

duty to act.

 

In the special case of determining the existence of an affirmative duty to

protect another, courts have traditionally looked to relationships where

"the plaintiff is typically in some respect particularly vulnerable and

dependent upon the defendant who, correspondingly, holds considerable

power over the plaintiff's welfare." (Prosser & Keeton, supra, at p. 374.)

 

The special relationship that arises between a patient and his doctor or

psychotherapist creates an affirmative duty to see that the patient does no

harm either to himself (Bellah v. Greenson (1978) 81 Cal.App.3d 614,

619 [146 Cal.Rptr. 535, 17 A.L.R.4th 1118]) fn. 8 or to others

(Tarasoff v. Regents of {Page 47 Cal.3d 311} University of California,

supra, 17 Cal.3d 425, 436-437). The relation of the nontherapist or

pastoral counselor to his counselee contains elements of trust and

dependence which closely resemble those that exist in the

therapist-patient context. Defendants here patently held themselves out as

competent to counsel the mentally ill, and Nally responded to these

inducements, placing his psychological and ultimately his physical

well-being in defendants' care. Whether defendants adequately fulfilled

their responsibilities to Nally is a separate question to which I will turn in

a moment. That defendants had some responsibilities to fulfill, however, is

not, in my view, open to question.

 

Nor is the nature of defendants' duty to Nally especially difficult to

perceive. As in every negligence case, the precise nature of the

defendant's duty will necessarily vary with the facts. (Tarasoff v. Regents

of University of California, supra, 17 Cal.3d at p. 439.) In each instance,

the adequacy of the nontherapist counselor's conduct must be judged

according to what is reasonable under the circumstances. (Ibid.) Where,

as here, defendants have invited and engaged in an extensive and ongoing

pastoral counseling relationship with an individual whom they perceive to

be suicidal, both reason and sound public policy dictate that defendants

be required to advise that individual to seek professional medical care.

 

The point, which the majority persistently misperceives, is not that

Pastors Rea or Thomson or anyone else should have known that Nally

would, in fact, commit suicide. The point rather, is that the evidence, read

in the light most favorable to plaintiffs, presents a triable issue as to

whether defendants knew or should have known that suicide was a

sufficient possibility to require that defendants advise Nally to seek

competent medical care. Notwithstanding the majority opinion's

conclusion to the contrary, the evidence in the record leaves no room for

doubt on this question.

 

It has been suggested that both public policy and the constitutional right

to the "free exercise" of religion militate against the recognition of a duty

of care in these circumstances. I cannot agree.

 

The "policy" considerations most often mentioned are the possibilities that

a duty of care "could deter those most in need of help from seeking

treatment out of fear that their private disclosures could subject them to

{Page 47 Cal.3d 312} involuntary commitment to psychiatric facilities"

(maj. opn. at p.297) or that such a duty could discourage "private

assistance efforts." (Maj. opn. at p. 298.) Such concerns are unfounded.

The scope of the duty contemplated is commensurate with the

nontherapist counselor's background and stated mission. Unless he also

happens to be a licensed therapist, his duty in most cases would not

require disclosure of confidential communications, but would simply

require that he advise the counselee to seek competent medical care.

 

Concerns about the possible exposure of counseling "hot lines" or even

well-meaning friends to liability, are equally misplaced. There is simply no

meaningful resemblance between such activities and the sort of counseling

relationship at issue here.

 

Finally, it is urged that the imposition of a duty of care on defendants

would unconstitutionally burden their First Amendment right to the free

exercise of religion. There is no merit to this contention.

 

While the First Amendment bars the government from "prohibiting the

free exercise of religion," religiously motivated conduct "remains subject

to regulation for the protection of society." (Cantwell v. Connecticut

(1940) 310 U.S. 296, 303-304 [84 L.Ed. 1213, 1218, 60 S.Ct. 900,

128 A.L.R. 1352]; accord Molko v. Holy Spirit Assn. (1988) 46 Cal.3d

1092, 1112-1113 [252 Cal.Rptr. 122, 762 P.2d 431].) However, it

should be noted that defendants here do not claim that their religious

principles prohibit resort to psychiatric counseling or the use of

antidepressant drugs, nor do they claim that their religious beliefs prohibit

a pastoral counselor from advising a counselee to seek psychiatric care.

On the contrary, the record shows that defendants not only acquiesced

in, but on occasion recommended such treatment.

 

Thus, defendants do not contend that a psychiatric referral itself violates

their religious beliefs. They contend, rather, that the imposition of tort law

duties in general creates an impermissible "burden" on religious liberty.

Where the interest is sufficient, however, it is well settled that government

may as readily compel religiously prohibited conduct as prohibit

religiously motivated acts. (See United States v. Lee (1982) 455 U.S.

252, 261 [71 L.Ed.2d 127, 134-135, 102 S.Ct. 1051] [court upheld

federal law requiring that Amish violate the tenets of their faith by

participating in the Social Security system]; Jacobson v. Massachusetts

(1905) 197 U.S. 11, 39 [49 L.Ed. 643, 655, 25 S.Ct. 358] [court

upheld law requiring the vaccination of children despite parental religious

objections].) Accordingly, courts, including our own, have determined

that religious groups may be held liable in tort for their actions (Molko v.

Holy Spirit Assn., supra, 46 Cal.3d 1092), {Page 47 Cal.3d 313} even

where they occur in the context of religiously motivated counseling. (See,

e.g., O'Neil v. Schuckardt (1986) 112 Idaho 472 [733 P.2d 693,

699-700] [church may be held liable for invasion of privacy resulting

from marital counseling]; Bear v. Reformed Mennonite Church (1975)

462 Pa. 330 [341 A.2d 105, 107] [action for interference with marriage

and business relations permitted where church ordered "shunning" of

former member]; Carrieri v. Bush (1966) 62 Wn.2d 536 [419 P.2d 132,

137] [court allowed action for alienation of affections where church

pastor counseled woman to leave her husband who was "full of the

devil"].) As the court explained in Carrieri: "Good faith and reasonable

conduct are the necessary touchstones to any qualified [First

Amendment] privilege that may arise from any invited and religiously

directed family counseling, assistance, or advice." (419 P.2d at p. 137.)

 

We need not go as far as these courts in sanctioning tort recovery for

conduct which was religiously motivated. The intrusion in this case (i.e.,

the duty to advise a suicidal counselee to seek medical care) is religiously

neutral. Defendants are not exposed to liability for refusing to counsel

contrary to their religious beliefs or for affirmatively counseling in

conformity with their beliefs. Thus, the burden on religion is relatively

minimal.

 

The governmental interest, on the other hand, is compelling; society's

interest in preserving the life of a would-be suicide is as profound as its

interest in preserving life generally. To this end, society surely may require

a pastoral counselor who invites and undertakes a counseling relationship

with an individual in whom he recognizes suicidal tendencies, to advise

that individual to seek competent medical care.

 

Thus, I am persuaded, on the facts presented, that defendants owed a

minimal duty of care to Nally. I am equally persuaded, however, that

defendants fulfilled their duty.

 

The facts in this regard are adequately stated in the majority opinion and

need not be retold here. Although defendants were aware of Nally's

suicidal tendencies and continued to offer counseling, they were also

aware that he had been hospitalized as a result of an earlier suicide

attempt, had seen a psychiatrist while in the hospital and been given a

strong antidepressant drug. The record shows that defendants were not

only aware that Nally was under the intermittent care of medical doctors,

including a psychiatrist, but affirmatively advised him on several occasions

to seek medical care. Moreover, Nally's psychiatrist, Dr. Hall, testified

that he had examined Nally in the hospital and had advised his parents to

have him committed. Dr. Hall, however, refrained from initiating

involuntary commitment proceedings. {Page 47 Cal.3d 314}

 

Therefore, as the trial court expressly found, the evidence shows that

defendants neither breached their duty to Nally, nor contributed in any

causally significant respect to his suicide. fn. 9 For these reasons, I

conclude that the Court of Appeal erred in reversing the judgment of

nonsuit and dismissal of the action.

 

Accordingly, I concur in this court's judgment.

 

Broussard, J., concurred.

 

­FN 1. Code of Civil Procedure section 581c provides in relevant part:

"(a) After the plaintiff has completed his or her opening statement, or the

presentation of his or her evidence in a trial by jury, the defendant,

without waiving his right to offer evidence in the event the motion is not

granted, may move for a judgment of nonsuit. ... (c) If the motion is

granted, unless the court in its order for judgment otherwise specifies, the

judgment of nonsuit operates as an adjudication upon the merits."

 

­FN 2. Contrary to statements in Justice Kaufman's concurrence, our

review of the record reveals that Rea did not become aware Nally could

not cope in the physical sense until after his suicide attempt. Indeed, the

record, when viewed in context, shows that when Nally told Pastor Rea

that he "could not cope" and just could not "live this life," he was referring

to leading the "Christian life."

 

­FN 3. Although Thomson recalled that Nally mentioned he had

considered suicide while a student at UCLA, and concluded there was a

"vague possibility" that Nally could consider suicide in the future, he did

not believe Nally's "intimation of suicide" gave rise to a "serious enough

likelihood where other help would be needed at that point."

 

­FN 4. The trial court refused to allow a witness from the American

Pastoral Counseling Association to testify about the standards of care

imposed by the association on member counselors. The court noted that

defendants did not belong to the association, and that the group had not

been accepted by the general pastoral counseling community as experts

in the field of pastoral counseling. In any event, the record fails to indicate

that defendants violated the foregoing unofficial rules of conduct.

 

­FN 5. Section 352 provides, "The court in its discretion may exclude

evidence if its probative value is substantially outweighed by the

probability that its admission will (a) necessitate undue consumption of

time or (b) create substantial danger of undue prejudice, of confusing the

issues, or of misleading the jury." "The discretion granted the trial court

by section 352 is not absolute citations and must be exercised

reasonably in accord with the facts before the court." (Brainard v. Cotner

(1976) 59 Cal.App.3d 790, 796 [130 Cal.Rptr. 915].)

 

­FN 6. Contrary to Justice Kaufman's suggestion (see conc. opn. by

Kaufman, J., at p. 310), Bellah, supra, 81 Cal.App.3d 614, 620, never

imposed "an affirmative duty on a psychiatrist to see that his patient does

no harm to himself." If such were the case, psychiatrists could be held

responsible whenever one of their patients made the unfortunate decision

to take his own life. We reject such a broad interpretation of the Bellah

dictum, and emphasize that because the court affirmed the trial court's

order sustaining the psychiatrist's demurrer without leave to amend and

dismissed the action, it never decided the duty issue.

 

­FN 7. Generally, there is a real question about the closeness of the

causal connection between a nontherapist counselor's failure to refer to

professional help and the suicide of a particular suicidal person. By their

very definition, nontherapist counselors are not professional medical

experts on suicide. Their activities are undertaken pursuant to doctrines

explicitly left unregulated by the state. (See post at p. 298.)

 

­FN 8. Our opinion does not foreclose imposing liability on nontherapist

counselors, who hold themselves out as professionals, for injuries related

to their counseling activities.

 

­FN 1. Contrast this picture of the Church's extensive involvement in

pastoral counseling (based on evidence in the record), with that

portrayed in the majority opinion. The majority writes: "According to the

trial testimony of defendant Senior Pastor MacArthur, 'Grace Community

Church does not have a professional or clinical counseling ministry. We

don't run a counseling center as such. We aren't paid for that, and we

don't solicit that ....'" (Maj. opn. at p. 284.) While not a major point in

itself, such selective citation of the record undoubtedly colors one's

overall assessment of the case, and to that extent is objectionable. As the

majority itself notes, on review of a nonsuit "the evidence most favorable

to plaintiffs must be accepted as true and conflicting evidence must be

disregarded. The court must give 'to the plaintiffs' evidence all the value

to which it is legally entitled, ... indulging every legitimate inference which

may be drawn from the evidence in plaintiffs' favor.'" (Campbell v.

General Motors Corp. (1982) 32 Cal.3d 112, 117-118 [184 Cal.Rptr.

891, 649 P.2d 224, 35 A.L.R.4th 1036], italics added.) The majority

has reversed this fundamental principle of appellate review, stating the

evidence, resolving all factual conflicts, and drawing all reasonable

inferences in favor of defendants. Moreover, in addition to the above

example, violations of this principle occur throughout the majority

opinion. (See fns. 2, 3, 4, and 5, post, at pp. 284-285, 289.)

 

­FN 2. How the majority could omit from its opinion this extensive

evidence of defendants' "holding out" is quite beyond my understanding.

(See fn. 1, ante, at p. 283.)

 

­FN 3. The majority asserts that I have mischaracterized Rea's

testimony, that in fact "Rea did not become aware Nally could not cope

in the physical sense until after his suicide attempt." (Maj. opn. at p. 284,

fn. 2, original italics.) On the contrary, the majority either ignores the full

record of Rea's testimony or, contrary to fundamental principles of

appellate review, draws only those inferences favorable to defendants. It

must be recalled that Rea was testifying as a hostile witness under

Evidence Code section 776; his responses on direct examination were

both dissembling and contradictory. Time and again, Rea was impeached

with his own counseling notes or prior deposition testimony. So it was

with his testimony regarding Nally's expressed inability to "cope." Initially,

Rea admitted that Nally had stated that from time to time he could not

"cope." Rea immediately denied, however, that the "cope concept" had

"come out" until after Nally's first suicide attempt. Counsel then

confronted Rea with his own counseling notes, and Rea was forced to

admit that just the opposite was true.

 

"Q: Isn't it your recollection that from January forward, Ken frequently

used that term, 'I don't know how to cope.'?

 

"A: Frequently? I can't say that, but I wrote down to express what Ken

expressed to me.

 

"Q: And from time to time he used that phrase?

 

"A: I would have to say so from that record.

 

"Q: From time to time he used it before you terminated the formal

counseling relationship?

 

"A: That's true.

 

"Q: Thank you."

 

Later, Rea attempted to characterize Nally's comments as referring

exclusively to the "spiritual," not the "physical" life. When confronted with

his prior deposition testimony, however, Rea was compelled to concede

that the idea of suicide was fairly inferable from Nally's statements and

conduct during the counseling sessions:

 

"Q: Was there an inference of suicide?

 

"A: Not to my knowledge.

 

"Q: Look to page 70 of your depo. Read from line 7 on down.

 

"Mr. Cooksey: How far, counsel?

 

"Mr. Barker: Down through line 22.

 

"Q: By Mr. Barker: Does that refresh your recollection?

 

"A: Yes.

 

"Q: Was there an inference of suicide in some of the things Ken said?

 

"A: Inference in the extent (sic) of coping and how far you stretch the

word, not being able to live this life, but the life is not physical life; it's the

spiritual life.

 

"Q: There was an inference of suicide in some of the things Ken said

during the normal counseling sessions?

 

"A: It could be construed that way.

 

"Q: And the term inference was your term; is that correct?

 

"A: Yes." (Italics added.)

 

Viewing this evidence in the light most favorable to plaintiffs, it is

reasonable to conclude that Nally's statements and actions during his

counseling sessions with Rea reasonably indicated the possibility of

suicide. The point, it should be stressed, is not that defendants knew or

should have known that Nally would commit suicide; the point, rather, is

that the evidence was sufficient to raise the reasonable possibility, and the

reasonable possibility was sufficient to trigger a minimal duty to advise

Nally to seek competent medical care.

 

­FN 4. The majority suggests that I have mischaracterized the record of

Thomson's testimony. (Maj. opn. at p. 285, fn. 3.) On the contrary, the

majority has simply construed the evidence most favorably to defendants,

rather than, as the law requires, indulging all reasonable inferences in

favor of plaintiffs.

 

In fact, Thomson testified as follows: "Q: You reached the conclusion,

didn't you, at the end of your first meeting with Ken in March, that Ken

might try suicide?

 

"A: There was that vague possibility, yes. I didn't conclude within myself

that it was a serious enough likelihood where other help would be needed

at this point, so I counseled him and prayed for him.

 

"Q: Did you think that Ken, in fact, might try suicide?

 

"A: It was a possibility. It was a vague possibility, yes."

 

Thomson further testified: "Q: And you then concluded, after your

questioning session, that although there was some possibility of suicide, it

wasn't likely?

 

"A: That's true."

 

Elsewhere he testified: "Q: And you concluded that he probably wasn't

going to commit suicide, but it was a possibility?

 

"A: It was a vague possibility, yes.

 

"Q: You took that possibility seriously?

 

"A: Yes.

 

"Q: And in taking it seriously, you talked with him about biblical concepts

and about what his inter sic strifes were that led to his depression and

led to his suicidal feelings?

 

"A: Yes.

 

"Q: But you did not talk to anyone else after that meeting with Ken about

the fact that Ken might be a threat to himself before the Verdugo

attempt?

 

"A: Not that I recall."

 

­FN 5. Concerning this second meeting, Thomson testified as follows:

"Q: And in that second visit, the suicide was discussed again, wasn't it?

 

"A: Yes. There was that possibility ....

 

"Q: In trying to help him as he was down, did you indirectly make an

effort to find out if he was going to try again?

 

"A: There was that intimation there, and that's as far as I wanted to carry

it."

 

­FN 6. Thomson testified as follows concerning the third meeting: "Q:

Were you -- at that time, you still took seriously Ken's suicidality, didn't

you?

 

"A: Yes.

 

"Q: And at that time, as with the first two visits, you still felt there was a

chance Ken was going to commit suicide?

 

"A: There was a possibility."

 

­FN 7. Unfortunately, the majority's analysis fails to properly distinguish

between duty and proximate cause. Based upon a misunderstanding of

our seminal decision in Rowland v. Christian (1968) 69 Cal.2d 108 [70

Cal.Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496], the majority implies that

lack of causation precludes the imposition of a duty. This is a misreading

of Rowland. That decision merely held that the "closeness of the

connection between the defendant's conduct and the injury suffered" was

one of a number of factors which might justify a departure from the

general principle that "'all persons are required to use ordinary care to

prevent others being injured as a result of their conduct.'" (Id. at pp.

112-113.)

 

­FN 8. The majority suggests that I have mischaracterized the court's

holding in Bellah v. Greenson, supra, 81 Cal.App.3d 614. Not so. The

Bellah court stated the issues before it as follows: "In the present case,

we must determine whether plaintiffs have alleged facts sufficient to give

rise to a duty on the part of defendant to take steps to prevent

decedent from committing suicide or to advise decedent's parents

about the existence of conditions which might cause decedent to take

her own life, so that they could take such steps." (Id. at p. 619, italics

added.) The Bellah court answered the first question as follows: "Here,

the complaint alleged the existence of a psychiatrist-patient relationship

between defendant and decedent, knowledge on the part of the

defendant that decedent was likely to attempt suicide, and a failure by

defendant to take appropriate preventive measures. We are satisfied that

these allegations are sufficient to state a cause of action for the breach of

a psychiatrist's duty of care towards his patient." (Id. at p. 620, italics

added.) My summary of the Bellah court's holding is accurate. A

psychiatrist's duty is to take reasonable steps to prevent a patient's

suicide. This does not imply, as the majority asserts, that a psychiatrist

can guarantee his patients' safety. On the contrary, as Justice Mosk has

observed, "psychiatric predictions of violence are inherently unreliable."

(Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425,

451 [131 Cal.Rptr. 14, 551 P.2d 334, 83 A.L.R.3d 1166] (conc. and

dis. opn. of Mosk, J.).)

 

­FN 9. The absence of breach or proximate cause does not, of course,

preclude our holding that defendants nevertheless owed a minimal duty of

care. (See fn. 7, ante, at p. 310.)

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