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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