Steven J. CAIRL, et al., Appellants, v. STATE of Minnesota, et al., Respondents, Ramsey County Welfare Department, et al., Respondents, Mary Ann CONNOLLY, etc., Appellant, v. STATE of Minnesota, et al., defendants and third party plaintiffs, Respondents, Bruce Hedge, defendant and third party plaintiff, Respondent, RAMSEY COUNTY WELFARE DEPARTMENT, defendant and third party plaintiff, Respondent, v. Steven J. CAIRL, et al., third party defendants, Appellants.
No. 81-437.
Supreme Court of Minnesota.
Aug. 13, 1982.
v.
STATE of Minnesota, et al., Respondents,
Ramsey County Welfare Department, et al., Respondents,
Mary Ann CONNOLLY, etc., Appellant,
v.
STATE of Minnesota, et al., defendants and third party plaintiffs, Respondents,
Bruce Hedge, defendant and third party plaintiff, Respondent,
RAMSEY COUNTY WELFARE DEPARTMENT, defendant and third party plaintiff, Respondent,
v.
Steven J. CAIRL, et al., third party defendants, Appellants.
No. 81-437.
Supreme Court of Minnesota.
Aug. 13, 1982.
Robert Austin, Minneapolis, for respondent Bruce Hedge.
Minnesota Medical Assoc., Kathleen A. Meyerle, Minn. Psychological Assoc., Donna J. Wolfson, Luther Granquist and Anne Henry, Legal Advocacy for Developmentally Disabled Persons in Minn., Minneapolis, amici curiae.
James Redman, Collins, Buckley, Sauntry & Haugh, St. Paul, for appellants Cairl, et al.
Hvass, Weisman & King and Reed MacKenzie, Minneapolis, for appellants Connolly, etc., et al.
Warren Spannaus, Atty. Gen., William Manning, Sp. Asst. Atty. Gen., St. Paul, for respondent State.
OTIS, Justice.
This is a negligence action arising out of a fire intentionally set by a boarding student, Tom Connolly, while visiting his family on holiday leave from the Minnesota Learning Center at Brainerd State Hospital. The appellant Cairl sues for damages arising out of the destruction of his apartment building, and Mrs. Connolly seeks damages for the death of her daughter Tina and for severe injuries sustained by her daughter Tamara. Plaintiffs’ allege that with a known history of starting fires Connolly‘s release was negligent, and that the State of Minnesota, the County of Ramsey Welfare Department, and certain state and county employees, breached their duty to warn plaintiffs of Connolly‘s dangerous propensities. Defendants’ motions for summary judgment were granted and we affirm.
The facts are not essentially in dispute. Connolly is borderline mentally retarded with an I.Q. of 57. In September 1976, at age 15, he was adjudicated a delinquent and was placed in a foster home. His mother, a recipient of AFDC, was ill and unable to control him. His problems were thought to be more psychological than delinquent and his supervision was therefore transferred by Ramsey County Juvenile Court from a county corrections officer to county welfare caseworker Douglas Johnson.
His adjustment to the original foster home was unsatisfactory and in February
In May 1977 he ran away and was found in a Roseville apartment at the scene of another fire. Arson charges brought against him were eventually dismissed for lack of evidence. However, by order of the Ramsey County Juvenile Court he was placed in Fairview Hospital‘s Adolescent Treatment Unit where he stayed for three months prior to his being sent to Minnesota Learning Center. Although his behavior at Fairview Hospital improved, his psychiatrist did note that Connolly‘s propensity for starting fires resulted from “frustration and aggression and does remain a concern for the next several years.”
In September 1977 he was admitted to Minnesota Learning Center which is not a custodial facility designed to segregate dangerous persons, but is an open door facility, operated by the Department of Public Welfare to provide treatment and education to mentally retarded youths with behavioral problems. In order to avoid institutional dependence and to promote speedy re-entry into the community, the Center is committed to treating its students by the least restrictive means and encourages home visits.
Because Connolly had not started any fires at Fairview Hospital his initial program at the Center did not target that problem for treatment. Although in October 1977 he did set a fire in a wastebasket at the Center, the staff apparently did not consider it a serious incident because it was started in an open area and was treated only as an attempt to attract attention. Shortly thereafter he was a suspect in a fire at the Center in November 1977. At that point his behavior became a target for treatment.
A conference attended by his mother, Mary Ann Connolly, and county caseworker, Douglas Johnson, was then held at the Center. His problems were evaluated and a program established to modify his behavior. The subject of a home visit was discussed and a Christmas vacation planned.
On December 21, 1977, Connolly was released for a Christmas home visit by defendant Bruce Hedge, the “community re-entry facilitator” at the Center. While the program to modify his firestarting behavior had not yet been implemented, a review of his file by medical staff at Minnesota Learning Center resulted in a decision to grant him a holiday pass. This decision as part of his overall treatment program, was in accordance with stated policy to provide treatment by the least restrictive alternative, and was based in part upon the fact that Connolly had acquired numerous “token economy” points which are given for good behavior.
Mary Ann Connolly and county caseworker Douglas Johnson were both advised that Connolly was returning home and Douglas Johnson accompanied him there. In the early morning hours of December 23, 1977, Connolly set a fire in the living room couch of his mother‘s apartment, as a result of which Tina Connolly was killed, Tamara Connolly was severely burned, and the four-plex in which Connolly‘s mother‘s apartment was located was destroyed.
The following issues are raised by this appeal:
- Was the decision to release Tom Connolly for holiday home visit protected by the doctrine of discretionary immunity?
- Did defendants violate statutes, court order, or regulations in releasing Tom Connolly for holiday home visit?
- Were defendants under a duty to warn plaintiffs about Tom Connolly‘s dangerous propensities?
- Did defendant Bruce Hedge, the community re-entry facilitator at Minnesota Learning Center, waive immunity to the extent of coverage under his private professional liability insurance policy?
To accept a jury‘s verdict as to the reasonableness and safety of a plan of governmental services and prefer it over the judgment of the governmental body which originally considered and passed on the matter would be to obstruct normal governmental operations and to place in inexpert hands what the Legislature has seen fit to entrust to experts.
Id. at 585-86, 167 N.E.2d at 66, 200 N.Y.S.2d at 413.
The problem, of course, is in determining whether a particular act of government involves the exercise of discretion. As this court recently stated, that determination “has been subject to enigmatic application and occasional breakdown.” Larson v. Independent School District No. 314, 289 N.W.2d 112, 120 (Minn.1979). The problem is compounded by the fact that almost every act involves some measure of discretion, and yet undoubtedly not every act of government is entitled to discretionary immunity. As we have said, “[d]iscretionary immunity must be narrowly construed in light of the fact that it is an exception to the general rule of [governmental] liability.” Id. at 121. Accordingly we must examine the nature of the decisionmaking process to determine whether discretionary immunity obtains. Id. at 120; Williamson v. Cain, 310 Minn. 59, 61, 245 N.W.2d 242, 244 (1976); Smith v. United States, 375 F.2d 243, 246 (5th Cir.), cert. denied, 389 U.S. 841, 88 S.Ct. 76, 19 L.Ed.2d 106 (1967).2
The decision to release Tom Connolly, involving as it does the professional evaluation of such factors as the protection of the public, his physical and psychological needs, the relative suitability of the home environment, and the need to reintegrate him into the community, is precisely the type of governmental decision that discretionary immunity was designed to protect from tort litigation by after-the-fact review.3 It in-
This conclusion finds direct support in our decision in Papenhausen v. Schoen, 268 N.W.2d 565 (Minn.1978).4 There, the victim of an aggravated assault and rape committed by a patient of the Anoka State Hospital brought an action against the state and certain state officials alleging negligence in the decision to transfer the patient for a short term medical parole from the high security St. Cloud Reformatory to the minimum security Anoka State Hospital. The patient escaped from the minimum security state hospital and attacked plaintiff. In affirming summary judgment in favor of defendants we stated:
The selection and monitoring of treatment programs, based on the personal examination of patients and their files, is in our opinion an indisputably discretionary activity, involving as it does the application of skilled judgment to a wide variety of human conditions. We are thus unpersuaded by plaintiffs’ suggestion that the activities of these defendants were merely ministerial and not protected by the doctrine of discretionary immunity.
Id. at 572 (citation omitted). Accord, Johnson v. State of California, 69 Cal.2d 782, 447 P.2d 352, 73 Cal.Rptr. 240 (1968); Fuhrmann v. Hattaway, 109 Mich.App. 429, 311 N.W.2d 379 (1981). In short, regardless of the precise scope of discretionary immunity, defendants in this case did not approach the point at which discretion is exhausted and duty arises.
2. Implicit in our conclusion is a rejection of plaintiffs’ alternative argument that defendants acted beyond the scope of their authority in releasing Tom Connolly. In McCorkell v. City of Northfield, 266 Minn. 267, 123 N.W.2d 367 (1963), we stated that the violation of an affirmative duty imposed by statute can occasion governmental liability. Here, however, we find no statutory provision imposing an “express obligation” upon defendants. Id. at 271, 123 N.W.2d at 370. Moreover, unlike defendants in Semler v. Psychiatric Institute of Washington, D. C., 538 F.2d 121 (4th Cir.), cert. denied, 429 U.S. 827, 97 S.Ct. 83, 50 L.Ed.2d 90 (1976), defendants in this case were not subject to the mandate of a court order which specifically retained court authority over decisions concerning the placement of the patient.5 Quite the contrary, the juvenile court approved the placement of Tom Connolly in the open door environment of Minnesota Learning Center where home visits are encouraged as an integral part of a student‘s overall treatment program.6 Were plaintiffs challenging a per-
3. An equally troublesome issue is whether or not defendants were under a duty to warn plaintiffs of Tom Connolly‘s dangerous propensities. This is an issue of first impression in this court. We are guided, however, by decisions of the California Supreme Court.
In Johnson v. State of California, 69 Cal.2d 782, 447 P.2d 352, 73 Cal.Rptr. 240 (1968), plaintiff brought an action against the state and certain officials for the negligent release of an offender and the failure to warn potential victims. The court concluded that the decision to release was protected by discretionary immunity, but that the subsequent failure to warn amounted to a breach of duty for which liability could be imposed. The existence of a duty to warn in Johnson was derived from the fact that a juvenile parolee with “homicidal tendencies, and a background of violence and cruelty” was placed in plaintiff‘s foster home by a state placement officer. Id. at 784, 447 P.2d at 354, 73 Cal.Rptr. at 242. Plaintiff was not aware of, nor did defendant advise her of, the juvenile parolee‘s potential for violence. She was subsequently attacked and severely injured. The court concluded that there exists “a duty upon those who create a foreseeable peril, not readily discoverable by endangered persons, to warn them of such potential peril.” Id. at 785, 447 P.2d at 355, 73 Cal.Rptr. at 243 (footnote omitted). The Johnson court therefore spoke in terms of a duty to warn of a latent foreseeable threat to specific members of a foster home.7
Similarly, in Tarasoff v. Regents of University of California, 17 Cal.3d 425, 551 P.2d 334, 131 Cal.Rptr. 14 (1976), the court addressed the issue of whether a psychiatric therapist owes a duty to warn a known potential victim of a patient‘s serious threat of violence. In Tarasoff, the therapist‘s patient made specific threats against a specific individual. The patient later carried out his threats and killed that individual. The court stated:
[O]nce a therapist does in fact determine, or under applicable professional standards reasonably should have determined, that a patient poses a serious danger of violence to others, he bears a duty to exercise reasonable care to protect the foreseeable victim of that danger. * * * “In sum, the therapist owes a legal duty not only to his patient, but also to his patient‘s would-be victim * * *.”
Id. at 439, 551 P.2d at 345-46, 131 Cal.Rptr. at 25-26 (quoting Fleming and Maximov, The Patient or His Victim: The Therapist‘s Dilemma, 62 Cal.L.Rev. 1025, 1067 (1974)). Thus in Tarasoff the court imposed a duty
Finally, in Thompson v. County of Alameda, 27 Cal.3d 741, 614 P.2d 728, 167 Cal.Rptr. 70 (1980), the California Supreme Court determined the extent of the duty to warn. There, the county released for a home visit a juvenile offender with “latent, extremely dangerous and violent propensities regarding young children.” Id. at 746, 614 P.2d at 730, 167 Cal.Rptr. at 72. The juvenile offender had indicated that if released he would take the life of a neighborhood child although he did not threaten a specific victim. Within 24 hours of release, the juvenile offender murdered plaintiffs’ child. The court distinguished both Johnson and Tarasoff, wherein the existence of a specific victim gave rise to a duty to warn, by noting that the Thompson victim was not “a foreseeable or readily identifiable target of the juvenile offender‘s threats.” Id. at 753, 614 P.2d at 734, 167 Cal.Rptr. at 76. The court further stated “that public entities and employees have no affirmative duty to warn of the release of an inmate with a violent history who has made nonspecific threats of harm directed at nonspecific victims.” Id. at 754, 614 P.2d at 735, 167 Cal.Rptr. at 77. The court limited the duty to warn to circumstances involving a specific threat to a specific individual, in part by reasoning that notifying the public at large of the release of an inmate with general violent tendencies would “produce a cacophony of warnings that by reason of their sheer volume would add little to the effective protection of the public.” Id. at 753-54, 614 P.2d at 735, 167 Cal.Rptr. at 77.
It is apparent, then, that if a duty to warn exists, it does so only when specific threats are made against specific victims.8 In this case Tom Connolly did not present a threat to specific victims. In particular, Tom Connolly did not pose a danger to plaintiffs different from the danger he posed to any member of the public with whom he might be in contact when seized with the urge to start a fire.9 Moreover, as noted in Johnson, if a duty to warn exists at all, it is a duty to warn of latent dangers. In this case, Tom Connolly was released to his mother who was well aware of her son‘s history of starting fires. Accordingly, we hold that under the circumstances of this case, defendants, in particular the staff of Minnesota Learning Center, were under no duty to warn plaintiffs of the potential dangers associated with Connolly‘s release.
4. Finally we consider whether defendant Bruce Hedge, the community re-entry facilitator at Minnesota Learning Center, waived discretionary immunity to the extent of coverage under his private professional liability policy. Plaintiffs cite
The judgment of the district court is affirmed.
Affirmed.
YETKA, Justice (dissenting).
I respectfully dissent. I would find that the defendants acted beyond the scope of their authority in releasing Tom Connolly without court approval. Here, the juvenile court specifically ordered treatment in a structured setting and required periodic treatment progress reports to be filed every 90 days. In this case, the report to the court was made only 3 days before Tom was released and did not contain any mention of the intention to release Tom for a holiday visit.
The rule, as we established in McCorkell v. City of Northfield, 266 Minn. 267, 123 N.W.2d 367 (1963), is that the doctrine of discretionary immunity does not apply where specific standards of conduct as set forth in statutes, regulations, or court orders are violated. See also Wilson v. City of Eagan, 297 N.W.2d 146 (Minn.1980). In the instant case, defendants violated the provisions of a court order and regulations of the Department of Welfare. Tom was under the continuing jurisdiction of the Ramsey County Juvenile Court and had been adjudicated a delinquent. In 1977, pursuant to
In the series of orders dealing with Tom, the juvenile court evinced both an interest in treating Tom and in protecting the public from Tom‘s pyromania. For this reason, the juvenile court ordered Tom confined at the Minnesota Learning Center and directed that Tom be placed in a structured behavioral program subject to court review. The juvenile court did not make a provision for temporary home visits of any duration; rather, the juvenile court ordered in-patient treatment and specified that it was to be notified of changes in placement or in the case of release. The majority argues that the juvenile court was aware that the Minnesota Learning Center often encouraged home visits as a part of treatment. That may be true, but whether the juvenile court was aware of that policy is irrelevant to this case; in the proper situation, Tom could have been granted temporary leave. The importance of the court order, however, is that these leaves should not have been granted without prior notification to the juvenile court. There is no reason why court approval could not have been obtained in the progress report filed 3 days prior to Tom‘s release.
Moreover, by not advising the juvenile court of Tom‘s release, defendants violated 12 M.C.A.R. § 2.034 D4 (1978). Once Tom was admitted to the Minnesota Learning Center, the defendants were obligated to comply with that regulation. The regulation provides that in the case of release:
c. Procedures shall be established so that:
*
*
*
*
*
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(2) The court or other appropriate authorities are notified when a resident‘s release might endanger either the individual or society.
In addition, I would find that, regardless of the court order and Department of Welfare regulations, defendants are not protected by the doctrine of discretionary immunity. Rather, when an act is performed on the operational as opposed to the planning level of government, discretionary immunity does not apply.1 Larson v. Independent School District No. 314, 289 N.W.2d 112 (Minn.1980).
As we noted in Larson, the doctrine of discretionary immunity should be narrowly construed as an exception to the general rule of liability as set forth in
The case of White v. United States, 317 F.2d 13 (4th Cir. 1963) is illustrative of this point. There, the court of appeals found the decision to accord freedom of movement to a patient who later committed suicide not to be discretionary. The court stated:
While the policy embodied in the Veterans Administration Regulations that patients should be allowed the maximum of freedom warranted by their condition is a discretionary decision, the application of that policy to an individual case is not within the category of policy decisions exempted by the statute. The application of that policy to the individual case is an administrative decision at the operational level which if negligently done will make the Government liable * * *.
Id. at 17. Similarly, this case also involved the mere application of a general policy to an individual and therefore was not discretionary.
For the above reasons, I would reverse the summary judgment granted for defendants and, accordingly, I dissent.
STATE of Minnesota, Appellant,
v.
Richard Paul TROG, Respondent.
No. 82-506.
Supreme Court of Minnesota.
Aug. 17, 1982.