Cooke v. Berlin, 735 P.2d 830

Cooke v. Berlin

735 P.2d 830

Ariz. Ct. App.

1987

Check Treatment

*1 Appellants for and have asked are enti- fees, attorney’s grant-

tled which will be 21(c), upon compliance

ed with Rule Rules Procedure, Appellate

of Civil 17A A.R.S. C.J.,

HATHAWAY,

FERNANDEZ, J., concur. COOKE, Plaintiff-Appellant,

Laura U. Berlin, BERLIN and

Sanford Jane Doe wife; Arizona,

husband and State

Defendants-Appellees.

No. 1 8529. CA-CIV Arizona, of Appeals

Court 1, Department

Division B.

Jan. appeal, being pending

This settled case 14, 1987. April

Review Dismissed Jones, Donahue, Trachta,

Molloy, Child- Meehan, Mallamo, ers P.C. J. & Michael *2 Tucson, McEvoy, plaintiff-ap- April appointment. for last David A. She was seen at 24, May the clinic pellant on 1982. Cooke. Tucson, Everett, appointment, for defendant- At March 9 Robinson

Leonard Lyle told appellee that she was now convinced that Berlin. responsible the CIA was not for con- Gibson, by Snell Wilmer Robert J. & home, tinuing herself and surveillance of Moore, Eileen Phoenix and K. J. Robert but that she felt the surveillance still was Corbin, by Reesing, Atty. Gen. A. Glen continuing. Lyle concluded that the sur- Gen., Phoenix, Asst. for Atty. defendant- veillance delusion was connected Robin- appellee State. having raped Although son’s in 1981. been March, appointments Robinson missed OPINION Lyle problems her sister related called and taking with Robinson not her medication JACOBSON, Presiding Judge. thoughts. expressing and suicidal Robin- impression In of first in Arizo- this case appointment son missed another initiated na, psychia- we must determine by Lyle call, as a of the sister’s result but employer trist and his liable to the by Lyle April was seen both and Berlin on surviving spouse who was 1 and 22. by killed individual who treat- an received April, Lyle In Robinson related to and out-patient. ment as an Berlin that she now concluded that a Tuc- light in a facts are taken most favor- Cooke, son disc jockey, respon- Robert was plaintiff-appellant, able to the Laura U. for the being sible surveillance which was Cooke, against summary whom judgment through carried on her radio. With Robin- 1982, In early was entered. late 1981 and permission, Lyle son’s contacted Cooke to Robinson, Tanya single year old stu- arrange a meeting between the two. University Arizona, dent at came to Lyle Both Berlin and refused. at subject believe that she was the of surveil- point no felt that there was likelihood Intelligence Agency lance the Central endangered by that Cooke was (CIA). conveyed this She belief to her sis- delusion. ter who help recommended that she seek 24, 1982, May On was Robinson seen from the Arizona Southern Mental Health Bussanich, hypnotherapist Joan (SAMHC). Center tax-sup- SAMHC a SAMHC. Bussanich did not consider Rob- ported operated public facility health hypnoth- an appropriate inson candidate for defendant-appellee State Arizona. See did, however, erapy. 36-501, Robinson inform Bus- A.R.S. et generally seq. Robin- going sanich that she was to leave Tucson February son was first seen at SAMHC on get away from Lyle, Cooke. Bussanich at- by Gypsy Barker social worker, tempted appointment to make another history took a from who Robinson May Lyle Although Robinson to see on working diagnosis and “para- came to a agreed Lyle, she 23, Robinson to call never February noia.” seen on Robinson was Lyle anyone contacted else at SAMHC by defendant-appellee, Dr. Sanford Berlin, thereafter. the last This was contact psychiatrist employed as a consul- Robinson with SAMHC. agreed Lyle’s tant to SAMHC. Berlin paranoia prescribed and Na- early In June Robinson moved vané, drug. anti-psychotic Phoenix, Arizona, stayed with her sis- 26,1982, July, February

On Robinson tak- ter. she left Arizona and moved Navane, Virginia grandmother. en off her because adverse side live with effects, Trifluoperazine pre- Virginia, While Robinson for the first only way scribed. seen on time she Robinson was March concluded that could escape appoint- but cancelled her March 17 and 29 surveillance was to Cooke’s again relayed thoughts ments. also seen kill him. these She was at the She never anyone, shooting. clinic fatal April on but cancelled her until after the August On returned NEGLIGENCE Tucson, family, did not contact her but addressing Before the issues anyone friends or at SAMHC. stole a She foreseeability, we dispose of the trial gun parents’ August from her home and on *3 court’s contention that Cooke failed to 22,1982, waiting for to leave a after Cooke present any negligence evidence of on the jockey, bar where worked as a disc shot he part so, of Berlin doing In SAMHC.2 we parking and killed him a lot. focus on what neg- Cooke contends are the subsequently Robinson was arrested ligent giving alleged acts rise to the liabili- trial, peti- on Pending tried for murder. ty in this case. tion, Community she admitted was to Kino Appellant’s allegations negligence Hospital diagnosed again where she was primarily opinion derived from the of her having schizophrenic disorder. paranoid a expert, Dr. Wesley A. again She was treated with Navane. She McEldoon. Basical- guilty by insanity ly, was found not reason of Dr. McEldoon found fault with to and was readmitted Kino on November “system” having SAMHC’s social work- 22, 1982. perform physician. ers the work of a As Dr. McEldoon testified: Subsequent testing at Kino sev- revealed eral chemical imbalances and a revised di- mean, I I think there is a real fault in agnosis “atypical psychosis.” Robinson system, any system the entire that would anti-depressant was treated with medi- person training take medical without improved. cation and her condition On [Gypsy Lyle] Baker make them re- discharged June Robinson sponsible for the and medical halfway SAMHC’s house. might present care that Cooke, Laura U. Robert Cooke’s surviv- them, any system puts non-physi- that ing spouse, against commenced action position doing cian in that is a disservice. Arizona, the State of Berlin and Robinson ****** County Superior The Pima Court. state sought granted change and was venue Q: you say- Let me Are understand. Maricopa County pursuant to A.R.S. qualified ing Gypsy that was not take 12-824(B).1 supreme The court declined § diag- initial make a information and ruling on special review this action nosis? Berlin, brought by Robinson and Cooke. right. A: That’s subsequently Robinson Cooke settled with and was dismissed from this litigation. ^[******] granted The trial motion of court Q: again you system So once think summary both the state and Berlin for qualified because it doesn’t have is bad doing so, judgment. In it stated: people, you’re saying? is that what “IT granting IS ORDERED the Mo- Basically, yes. A: Summary Judgment finding tions for Q: remedy you And that duty to the that the defendants owed no having people qualifications with what plaintiff liability, can form that a basis of again? specifically, that not have SAMHC could doing reasonably physicians phy- foreseen I Tanya that Robin- A: would have injure certainly son would Robert Cooke. I wouldn’t sician work. [sic] doing physician Further, social workers any the Court finds a lack [sic] negligence part evidence of on work.

Barker, Bussanich, Berlin or SAMHC.” Q: money, more That would cost appealed. Laura U. has it? Cooke wouldn’t 12-824(B) 1. A.R.S. as A.R.S. the State of Arizona shall transferred renumbered Law, 1984, Maricopa County 12-822(B) for trial. ch. 7. This requires statute in essence that written appeal, appellant not does contend that 2. On General, Attorney demand of the action individually Lyle or Bussanich are liable. either Robinson, question Certainly. A: treatment of re negligence gives mains such rise Q: problems, it? That’s one isn’t any liability killing problems. of the A: That’s one focusing In Robert Cooke. on this issue it addition, concluded Dr. McEldoon important is state theories are what not applicable standard of Berlin fell below espoused appellant. appellant re-evaluating the initial care not misdi- appellees does contend that the had a correcting misguided agnosis thus duty to Robert warn opinion In Dr. plan. treatment McEldoon’s him, posed a threat as there no evi negli- Berlin not acted if had SAMHC dence that the knew Robin *4 case, would have gently in this Robinson an son had formed intent to harm Cooke. not have killed cured and thus would been Regents University See Cooke. Tarasoff of of 425, 131 14, California, Cal.Rptr. 17 Cal.3d testimony, opinion, In this at our (1976). 551 P.2d 334 It is clear that this stage, summary at is judgment least the intent, Robinson, according to was not issue of fact sufficient to raise material Virginia, formed was until she some two “system” as to the established whether months after she was last seen at SAMHC. care the state to render mental health equally It clear this that intent was deficient, and whether Berlin’s treatment anyone never prior voiced Robinson to applicable of fell below the stan shooting. dard of care. Also, appellant does not contend that reject argu We also the state’s appellees a duty had to confine Robin- assuming arguendo ment that that Berlin (Second) generally son. negligent, the state not be vicar See Restatement iously (1965). Again, because Berlin was an inde it liable 319 is con- Torts § of this pendent reject argu contractor. We time ceded that at the Robinson was under First, ment for two reasons. even if Dr. by SAMHC she was not committ- treatment contractor, independent Berlin were an it 36-529(B) posing able A.R.S. as under appears provide that the state undertook to danger to herself to others. nondelegable duty provide adequate does, however, Appellant assert DeMontiney care. v. Desert See Manor duty Berlin SAMHC and owed a Center, 144 Ariz. 695 P.2d Convalescent party foreseeably third risk from Second, (1985). appellant 255 has al negligent diagnosis and treatment of Rob- leged independent negligence of the state inson. non-physicians perform allowing work duty In this issue we opinion analyzing which of Dr. McEldoon can start only performed physician. recognized concept negli Dr. with the “a qualified McEldoon was to render such an gence may if action be maintained opinion. recognized duty obligation, there is a law, requires defendant con appellant We therefore conclude that form of particular to a standard conduct purposes avoiding summary for the of order others unreason protect judgment, has raised an issue of fact con- able harm.” Markowitz v. risks of Arizo cerning appellees’ an appro- failure to meet Board, 146 Ariz. na Parks 706 care, diagnosis priate in the standard (1985). making legal P.2d 366 this and treatment of Robinson’s mental condi- we heed the tion. determination admonition Supreme equate not to Arizona Court DUTY duty concepts details of Tucson, City Having concluded that conduct. Coburn 143 (1984).3 negligent have been in the and Ariz. We there- foreseeability We find this somewhat difficult can be in the admonition viewed abstract. foreseeability Long Co., attempting Palsgraf when to define See Railroad as Island duty, (1928), adopted element of for we are at a loss to see how N.Y. 162 N.E. 99 in Arizo- question (1) presented ships fore are with the broad are: the duty parent of a con- any person duty has the 316); (§ (2) trol the conduct a child of a control the conduct third so as duty of a master to control the conduct prevent befalling harm another. The (§ 317); (3) possessor servant aof no, question qualified answer to is a of land or chattels to control the conduct of there to control is no common-law 318); (4) (§ a licensee those acts of another. Davis v. Mangelsdorf, charge persons having dangerous pro- (App.1983); Ariz. 673 P.2d pensities 319). persons (§ to control those (Second) Torts, Restatement relationships All of these share the com- (1965). Kime, generally Harper See & The ability mon characteristics of the actor’s Duty Another, to Control the Conduct of obligation to control the conduct of the (1934). 43 Yale L.J. 886 party. third City County Seibel v. (Second) The Restatement Torts Honolulu, Hawaii 602 P.2d (1965) general reflects the rule of nonliability exceptions: its argues, however, appellant There is no so to con- control the *5 person prevent regardless duct a third as to him of of the existence of these control causing physical characteristics, from harm to another psychiatrist-patient the re sufficient, itself, unless lationship is in to (a) give control, special duty citing rise to to Lipari a relation exists between v. person Co., Sears, the and the third which F.Supp. actor Roebuck & 497 185 imposes duty a (D.Neb.1980); State, the actor to control 100 Petersen v. conduct, person’s the third or (1983). 671 230 Wash.2d P.2d (b) special a relation exists between opinion, majority our the better the gives actor and the other which which have the reasoned cases addressed right protection. the a other psychiatrist-patient con- relationship have dispose exception We can of the stated in duty cluded that to control should 315(b) summarily. Restatement rather § imposed solely because that relation- exception require relationship This would States, ship. Abernathy See 773 v. United appellees to exist between Robert (8th Cir.1985); Anthony F.2d 184 v. United give right which would Cooke Cooke States, (D. 1985); F.Supp. 156 616 Iowa protection. looking specif- risk At the States, F.Supp. 541 999 Hasenei v. United relationship, ic conduct establish that (D. 1982); Center, Maryland Bradley Inc. only contact between SAMHC and Cooke Wessener, Ga.App. 576, 161 287 v. S.E.2d telephone Lyle call from to Cooke (1982); College Long 716 Island Cartier participation in requesting his 602, 111 894 Hospital, 490 N.Y.S.2d A.2d finding in nothing treatment. We this (1985). give to any brief contact which would rise relationship The record indicates obligation to protection, afford ab- and Robinson between by sent a threat Robinson. See any right, opportunity completely bereft of Regents University Cali- Tarasoff ability or to control her conduct. In this fornia, supra. Hasenei, regard, supra the district court exception We turn then to the stated in held that: 315(a), dealing with the ex- Restatement § relationship existing typical be- [t]he special relationship im- istence of which psychiatrist voluntary and a out- tween poses to control. As stated patient seem lack ele- sufficient (c), (Second) comment Restatement necessary bring ments of control such 315: relations between the Torts § “[t]he In- relationship within the rule of 315. require actor and a third which deed, therapist lack control person’s third conduct actor to control the patient stated 316-319.” These relation- maximum freedom for the is oft- §§ na, Cruz, (1952). West v. 75 Ariz. sought Where, then, psychi-

times the end both the do the “non-control” conta- profession gious atric and the law. disease and failure to warn of medi- opinion cation cases fall? In our we should States, F.Supp. Hasenei v. United determine policy decisions (1982). gave imposition which rise to the appellant contends, however, in those apply equal cases force in this necessary purposes “control” for discussing issue, case. In arewe analogized Restatement can be mindful that: physicians persons owed [d]uty itself, is not sacrosanct in but patients failing other than their diag- expression of the sum total of contagious nose or warn of or infectious policy those considerations of which lead disease, Skillings Allen, 143 Minn. say particular the law to that the plain- (1919), failing N.W. 663 to warn of protection. tiff is entitled to medication, the side prescribed effects of Prosser, Torts, Law 3d. Ed. at 332-333 Goldin, Mich.App. Duvall v. (Mich.App.1984), failing N.W.2d 275 patient warn a who suffers seizures not to “Those policy” considerations of automobile, Lemmon, drive an have been Freese v. articulated the courts and (Iowa 1973). (1) 210 N.W.2d 576 commentators are: foreseeability Whatever legal analysis ap- plaintiff flowing be said about the harm to the from the de act, plied cases, (2) they degree these fendant’s certainty are not plaintiff (3) “control” that the injury, cases. This clear suffered distinction was recognized “closeness” of the connection Tips, Gooden v. between the S.W.2d *6 defendant’s (Tex.Civ.App.1983), injury 364 conduct and the suf imposing duty a fered, (4) upon the moral physician a blame attached to the failing for to warn the conduct, (5) defendant’s patient/driver policy pre the of pre- the side effects of harm, (6) venting future the burden on scribed the medication: community impos defendant and to the point ... We out that we do not hold ing care, duty (7) to exercise due and the duty that a part arose on the Tips Dr. availability, prevalence cost and of insur to control the patient conduct of his ance to cover the risk. Regents v. Tarasoff imposed in cases such as v. Tarasoff University California, 17 Cal.3d Regents University California, 17 Cal.Rptr. (1976). 551 P.2d 334 131 Cal.Rptr.14, Cal.3d (1976); Milano, McIntosh v. contagious N.J.Su and infectious disease per. 466, (1979); 403 A.2d 500 Lipari cases, applying v. policy when these consider- ations, F.Supp. Sears Roebuck & Co. 497 conclude duty imposed that a (D.Neb.1980); Center, Bradley upon and physician patients Inc. who attends af- Wessner, Ga.App. 576, contagious flicted with 287 S.E.2d infectious disease 716(1982)____ that, only negligently We not to hold under do act that would alleged, spread disease, the facts tend to Tips may here Dr. because: duty had a patient to warn his not to people health of the is an econom- [t]he drive. We do not hold that he had a recognizes ic asset. The law preser- its prevent driving, her from if she so vation as a matter of importance to the state____ (emphasis original.) desired.” The laws ... have been protect framed to people, collectively 651 S.W.2d at 370. individually, spread from the of com- simply game This becomes more than municable diseases. semantics, psychiatist-patient for if Allen, Skillings 323, 173 143 Minn. N.W. relationship does not fall within the “con- exception 315(a), trol” we are left with general Thus, common law rule that no physician’s failure to exercise exists to control the conduct of a third due care in the and treatment of causing harm to another. contagious known diseases will result

immediate and consequences foreseeable opinion, In our the essence of public the health of large. problem, concern, and our aptly cap- tured in Brady Hopper, F.Supp. Likewise, the failure to warn of the side (D.Colo.1983). In Brady, plain- effects of medication or results of disorder injured tiffs were by John Hinckley, W. Jr. cases be harmonized looking to in Hinckley’s attempt to assassinate Presi- duty concepts imposed by Restatement Reagan. dent alleged, part, The suit (Second) 311 (imposing liability Torts Hinckley’s psychiatrist negligently had harm caused negligently giving false diagnosed and treated him. The Brady information which another can rea- court held psychiatrist owed no sonably rely). concurring opinion See plaintiffs Hinckley because had not Uhlenhopp Justice Lemmon, in Freese v. specific made against threats readily supra. identifiable F.Supp. victim. 570 at 1339. opinion, In our applying these policy con- holding, In so the court stated that: siderations finding militates impose upon those in the counsel- [t]o duty to solely psychia- control based on the ing professions an ‘duty ill-defined trist-patient relationship. First, it is con- control’ would require therapists to be ceded by Tanya Dr. McEldoon that Robin- ultimately responsible for the actions of son at the time she was under the care of patients. their Such closely a rule would defendants, posed no threat to Robert approximate liability a strict standard of Cooke and thus the harm suffered care, therapists potentially would be Second, Cooke was not foreseeable. liable for by persons all harm inflicted connection between alleged the defendants’ presently formerly psychiatric under (failure diagnose conduct and successful- treatment. simply Human behavior is treat) ly shooting and the of Robert Cooke unpredictable, too psy- the field of is remote. This is true from a chotherapy presently too inexact to so standpoint, causation but also from time greatly expand scope therapist’s standpoint. distance The determina- liability. In my opinion, ‘specific tion kill Cooke was formed threats to victims’ rule states a *7 some three months after she had unilater- workable, and boundary reasonable fair ally terminated treatment and while she upon sphere therapist’s of the liabili- Third, Virginia. was in imposing liability ty for patients. the acts of their in this case will not ensure that the treat- 570 F.2d at 1339. ment and mentally of the ill will agree holding We with the in Brady. improve. simple This is for the reason that reaching conclusion, cognizant we are ability diagnose dangerousness to and of the policy gov- considerations of which simply thus control or treat it is not that ern negation creation or of the of a accurate. by Schopp As was noted and psychiatrist diagnos- toward others when Quatrocchi in Tarasoff, The Doctrine of ing treating and person. Having a third Special Relationships Psycho- and the reviewed policy, these considerations of we Warn, therapist’s Duty Psy- to Journal of conclude that in the instant case no chiatry (Spring 1984). and Law plaintiff’s run from the to [u]nfortunately, large a rather showing specific decedent absent a body consistent empirical evidence in- specific threat to a victim. dicates that the profes- standards of the ability sion include no accurately pre- VENUE dangerous dict behavior. Not have psychologists psychiatrists 12-822(B) been un- A.R.S. mandates that § predict dangerousness able to upon to a de- attorney gen written demand of the gree accuracy eral, justify place which would in- any of trial of action fringing upon rights, they client’s negligence the state in contract or actions been predict unable to any changed more accu- Maricopa County. shall be rately nonprofessionals. than have provision is mandatory. Additionally, nor change any has been made did Robinson inform them when of venue intent 12-822(B) However, Lyle and the to harm Cooke. pursuant and Dr. A.R.S. § gratuitously Berlin party, the action is not involved Cooke their state remains a professional dealings with Robinson’s men- subject provisions to the venue A.R.S. problems by contacting arrange tal him to University Hospi- 12-406. v. Johnson meeting between Robinson and tal, (App.1985). Cooke. 148 Ariz. 712 P.2d 950 refused, and Robinson informed Appellant argues opinion in that our John- rejection by Although of this Cooke. it decline to son should be reconsidered. We was clear that Cooke focus of was the do so. delusions, did not Dr. Berlin Appellant argues assuming that also probe degree to determine what 12-822(B) controlling, A.R.S. the stat Cooke, anger she directed at hpstility ute is unconstitutional in it is violative degree perceived or the of the threat she process protection equal of the due posed he to her. clauses of the federal and state constitu Appellant argues legal duty that the previously As stated in tions. Johnson v. governed by this case is not the rule of University Hospital, we read the Arizona “specific threats to victims” be- Supreme Superi Court decision State premising cause she is not liability on the (1978) Court, 120 Ariz. 585 P.2d 882 “failure to warn” but negligent diag- as, impliedly, upholding at least the consti nosis and treatment. She asserts that 12-822(B). tutionality of 148 Ariz. at SAMHC and Dr. Berlin owed Valley 712 P.2d at 956. See also Gila party foreseeably negli- third at risk from Court, Irrigation Superior District gent performance psychiatric services to Ariz. This court argues psychothera- Robinson. She authority prior lacks to disaffirm decisions pists, physicians, like other owe a Supreme of the Arizona Court. Johnson public following recognized akin to the Hospital, University 148 Ariz. at liability persons duties: infected their Consequently, P.2d at 956. we do not ad patients failing diagnose a conta- constitutionality dress the issue. disease; gious liability persons injured in Judgment affirmed. negligently accident for di- automobile agnosing treating patient who had a CONTRERAS, J., concurs. car; driving liability per- seizure while CORCORAN, Judge, dissenting part, prescribing a injured sons a driver for concurring part: drug, contributed to the effect Negligence causing a collision. *8 agree I majority appellant with the that Appellant argues duty also that a to Cooke, purpose avoiding for the of summa- diagnose pa- persons third and treat a

ry judgment, has raised an fact issue of non-negligent in finds its tient manner concerning appellees’ failure to meet an (Second) basis in Torts Restatement of appropriate diagno- standard in of care (1965), provides: 319 which sis and treatment of mental Robinson’s charge per- of a third One who takes condition. son he or should know to whom knows if likely bodily be to cause harm to others

Duty duty to exercise not controlled is under a per- I respectfully dissent from the section of reasonable care to control the third doing majority opinion dealing Duty. prevent him from such with son to harm. case; duty This is not a it is one warn negligent diagnosis Ap- Although basing liability upon this and treatment. cases

pellees they duty provision generally contend custodial situa- owed no involve tions, appel- undisputed Lyle, appellant argues it Cooke because was Berlin, accepting charge Dr. and Bussanich did not know lees took of Robinson under- dangerous propensities, outpatient her at SAMHCand that Robinson had as an 228

taking argues treatment. Additionally, she Pohle, 208, failure. Revels v. 101 Ariz. 418 appellees performed that had profes- (1966). their 364 P.2d See Bell v. New York non-negligent manner, sional services in a City Hosp., 270, Health & 90 A.D.2d they should have known that Robinson suf- (1982). N.Y.S.2d 787 “atypical from psychosis” fered ren- which In v. City Tucson, Coburn 143 Ariz. likely bodily dered her Finally, do harm. 50, 691 (1984), P.2d 1078 supreme our court appellant argues that had condi- expressed disapproval of attempts treated, properly diagnosed tion been equate duty with details of con- she would have killed not Robert Cooke. approved analysis duct. The court recognize I the reluctance of courts to Keeton, from W. Prosser and W. Law of duty impose psychotherapists to (5th 1984), Torts 53 at 356 ed. which prevent patient doing harm to an defines duty as follows: party. unknown third Much of con this “[D]uty” question ais of whether the cern difficulty, stems from the inherent obligation defendant under any is for the impossibility, some contend in predicting particular plaintiff; benefit dangerousness under such circumstances. negligence cases, is always the also grounded recognition It is same—to legal conform to the standard diagnosing inexactness of mental illness as light reasonable conduct in the of the compared physical with ailments. How apparent risk. What the defendant must ever, difficulty does justify alone not do, do, question must is a barring recovery in all situations. As the required standard satisfy of conduct interpreting California court stated in Tarasoff duty. Regents University v. Califor Bd., Markowitz Arizona Parks nia, 17 Cal.3d 551 P.2d 131 Cal. 352, 355, (1985), Ariz. 706 P.2d our (1976): Rptr. 14 supreme again once expressly court negligent diagnose danger- A failure to pointed unequivocally for out our benefit ousness in action as much a Tarasoff and that of the trial courts that “the exist- liability negligent basis as is a failure of duty ence is not to be confused warn diag- a known once victim such details of the standard of conduct.” made____ nosis has been Court, analysis Superior duty by Consistent with the Hedlund v. 34 Cal.3d supreme our court are Cal.Rptr. P.2d those cases which viewed the owed others psychotherapist as a to take reason- diagnosing predict difficulties precautions protect anyone able who ing properly behavior are more addressed might reasonably endangered by their determining particular whether con patient. reject I Brady Hopper, would negligent duct rather than in deter (D.Colo.1983). Instead, F.Supp. I mining exists. The stan adopt approach Lipari taken in professionals dard care of mental health Sears, Co., in Roebuck & difficulty must take into account court held: making a definitive mental *9 prognosis dangerousness. illness and require psychother- It is not the unfair States, Hicks apist precautions See v. United F.2d to take those (D.C.Cir.1975); Lipari Sears, therapist Roe would be taken a reasonable Co., (D.Neb. Moreover, F.Supp. buck & under similar circumstances. 1980); Service, Counseling Peck v. 146 Vt. this Court refuses to rule as a matter (1985). Appellant therapist 499 A.2d law that a reasonable would arguing merely required precautions is not error in medical never be to take judgment respect warnings____ with to SAMHC Dr. than These other issues Robinson; rather, Berlin’s treatment of she only parties can be determined after the alleging perform competent prove is failure to opportunity had an what Liability precautions psychotherapist examination. can arise from such a reasonable personal in injury take under the circumstances suit and stated that “be- here. issue importance cause the absolute vital proper presentation of evidence to a 17 Cal.3d F.Supp. Tarasoff, at 193. Cf. jury, specialization personal injury in the 345-46, Cal.Rptr. at at 551 P.2d at experienced field has occurred and trained attorneys vital to the defense of present- appellant I conclude that Cooke Attorney pointedly lawsuit.” The General ed sufficient substantial evidence of a rela- stated: tionship between Robinson and protect gave rise to a others Attorney The division of the General’s foreseeably negli- at risk who were charged defending Office with the State gent performance of their services to Rob- agencies personal injury litiga- and its in inson. Liability tion is the Defense Division. 7,1984] currently [February This division Venue attorneys, five consists of all whom I majority concur with the in the section Maricopa County. are officed in The At- dealing with Venue but wish make addi- torney emphasize General’s Office would

tional remarks. Liability that no Defense Division attor- All logi- relevant factors indicate that the neys County are officed in or in Pima cal venue of this case should be Pima Coun- county other in the State of Arizona. ty. statute, change But for the of venue Response The indicated that nine at- permitting Attorney General to demand torneys in specialized the Tucson office in Maricopa County, that venue be A.R.S. personal injury, fields other than and that 12-822(B), the venue of this case would Attorney had in General offices County. be Pima All of the incidents al- Phoenix and Tucson. leged the'complaint in occurred in Tucson. supreme accept jur- The court declined to Robinson resides Tucson. The state fa- cility, petition special Southern isdiction of for on Arizona Mental Health action Center, treated, months, where Robinson was is lo- March 1985. Within six counselor, Every cated Tucson. psychol- Attorney private General “associated” con- ogist and employee each who attended Rob- represent tract counsel to the state. inson resides in Tucson. All medical * state, through private The counsel con records and other documents material to General, Attorney indi tracted for this case are located in Tucson. Almost all cates that there “a rational basis” testify witnesses who be called to given authority Attorney to the General in trial appear reside Tucson. It would 12-822(B). I will set forth a sum A.R.S. § that “the convenience of witnesses mary arguments “rational of' the basis” justice promoted” by ends would be trial made the state and some observations 12-406(B)(2). in Tucson. See A.R.S. § relating to them. Tucson, practices Dr. Berlin and lives in A “rational basis” for the statute assert-. attorney. as does his Dr. Berlin and Robin- ed state is that it is for the “conve- (who represented by pro son bono nience of the state.” state does not counsel) joined appellant both is, elucidate what the convenience or for petitioners petitioning supreme matter, of trial what inconvenience grant special court to action on the venue capital, in Tucson would be. Phoenix is the seeking issue spe- trial Tucson. In the Attorney but the General also has an office (No. supreme cial action in the court 17368- in Tucson. Phoenix is as far from Tucson SA), Attorney appeared General on be- *10 as is from Phoenix. The state does Tucson half of the state. Attorney The General’s attorneys Response disagreed not claim that available to proposition with the “just any lawyer in than adequately try represent can the state counties other * Although Attorney signed appeared the lead of this case lists the in this court and has not co-counsel, Attorney answering General as General has brief.

Maricopa are less able or bring that their offices hicle to Maricopa County cases to are somehow further from the parts courthouse. divers the state in which represent Phoenix law firms then argues The state also that “minimization state’s interest. Both the Attorney Gener- expense public” to the is a rational basis. al, reputed largest which is to be the law However, the state does not set forth how state, firm in the and other law firms it expensive it is less for the Attorney Gener- Phoenix, in certainly compe- hires have the al to hire a Phoenix law firm to defend a capability practice tence and any- law opposed case in Phoenix hiring in attorneys where the state. The from all Tucson law firm to defend the case in Tuc- regularly appear- these offices make develop son. The state does not its state- throughout ances in cases Ari- the state of ment that somehow venue Phoenix “min- attorneys throughout zona. There are expenditure public of effort and imize[s] competently efficiently state who can and funds.” represent judges the state. There are and The state asserts that in Maricopa venue juries throughout the fairly state who can County provides “uniformity rulings” try any involving issues the state. and interpretation rulings.” “uniform appropriate It would seem that the su- Again, the state does not elucidate. There preme court revisit the constitutional is- superior judges are over 50 court and an case, legisla- sues raised or that the additional number of court commissioners policy conveniencing ture reconsider the judges pro tempore and in Phoenix who Attorney General when the result may try argue this case. It is ludicrous concomitantly to retain Phoenix firms law only rulings efficient and uniform can represent the state and inconvenience Maricopa County, obtained in and not everyone litigation. else involved County. Pima The state does not claim (West 1973) Phoenix, See Cal.Civ.Proc.Code justice just is more or even (the California quicker. that it is statute from which A.R.S. 12-822(B) originally pro- taken now alleges The state that “countless liti- vides for venue in suits the state gants” sue the state on all sorts “in any city ... of this State in which the grounds, 12-822(B) and that pro- A.R.S. § office”). Attorney General has an vides a method to “centralize these count- handled, less they claims so that can be

efficiently, professionally and cost-effec-

tively by Attorney General.” The At-

torney handling General is not this case! attorneys handling

Contract it! The 735 P.2d 840 state does not set forth what the benefit is Lindsey, having number different Phoenix Ben LINDSEY and Jerri hus- wife, Plaintiffs/Appellants, attorneys contract handling these “count- band and many less claims” in different courtrooms in Phoenix. Nor has it demonstrated how Dempsey, Cedric DEMPSEY June this leads to efficiency higher profes- wife; Henry husband and Koffler sional standards. The blank assertion that Koffler, Phyllis wife, husband and simply it is “cost effective” is a matter of Defendants/Appellees. conjecture. The state does not set forth No. 2 CA-CV 5786. (or how Tucson contract counsel even Phoe- counsel, nix contract or the office Appeals Arizona, Court Tucson) Attorney General in Phoenix or 2, Department Division A. processing this case in Tucson would be Jan. 1987. efficient, professional less less or less cost- Review Denied March present representation effective than with Maricopa County venue. function that A.R.S. 12- 822(B) seems provide to serve is to a ve-