The ESTATE of Brenda Joyce MATHES, by Kenneth O. Mathes, Administrator and Kenneth O. Mathes, Plaintiff-Appellant, v. Kenneth L. IRELAND, Juanita Ireland, Shiela Pierce, Donald Pierce, Oaklawn Psychiatric Center, and Northeastern Indiana Psychiatric Center, Inc., Defendants-Appellees.
No. 3-179A27
Court of Appeals of Indiana, Third District
April 27, 1981
Rehearing Denied June 24, 1981
419 N.E.2d 782
“A sales brochure of Defendant regarding its ‘Nituff’ process, . . . contains the following warranty, which was not repeated or rеferred to in any other documents pertinent to the transaction which is the subject matter of this litigation.” (emphasis added)
There being no evidence that the warranty was a part of the contract in question, we hold the trial court properly refused to consider the provision as limiting the liability of NIMET in this case.
III. Prejudgment Interest
Finally, JOY argues on cross-appeal that the trial court should have awarded prejudgment interest. JOY requested interest at the rate of 8% per annum from February 16, 1978, the date of the NIMET fire.
Prejudgment interest is available only when the principal amount of damages is ascertainable in accordance with fixed rules of evidence and accepted standards of valuation at the time damages accrued. City of Anderson v. Salling Concrete Corp., (1980) Ind.App., 411 N.E.2d 728; Portage Indiana School Construction Corporation v. A. V. Stackhouse Company, (1972) 153 Ind. App. 366, 287 N.E.2d 564. JOY argues the parties’ stipulations of fact “indicate” that the valuе of the pistons at the time of the fire loss was $8,015.41. In fact, the stipulation to which JOY refers merely recited that plaintiff‘s “alleged” damages were $8,015.41. There is no evidence which indicates how the compressor pistons were valued; there was certainly no evidence of accepted standards of valuation. JOY‘S original demand for compensation from NIMET was $12,453.44. Neither the record nor JOY‘S argument on appeal demonstrates the trial court abused its discrеtion by refusing to award prejudgment interest.
Accordingly, the decision of the trial court is affirmed.
YOUNG, P. J., and MILLER, J., concur.
Howard S. Grimm, Grimm & Grimm, David A. Kruse, Kruse & Kruse, Auburn, for plaintiff-appellant.
Philip Butler, James P. McCanna, Butler & McCanna, Auburn, Carl J. Suedhoff, Jr., Thomas L. Wooding, Hunt, Suedhoff, Borror, Eilbacher & Lee, Fort Wayne, Gregory A. Hartzler, Yoder, Ainley, Ulmer & Buckingham, Goshen, for defendants-appellees.
Kenneth O. Mathes, individually, and as the administrator of the estate of Brenda Joyce Mathes, brought this action for wrongful death. The complaint alleges essentially that on October 13, 1973, one Kenneth R. Pierce, aged 20, abducted Brenda Mathes at knifepoint from a laundromat. He forced her into his car and drove to the St. Joe River. There he forced her from the car and drowned her. She was survived by her husband and one minor child.
After several amendments the complaint asserted claims against Pierce, his mother and father, his grandparents and two psychiatric care centers, Oaklawn Psychiatric Center and Northeastern Indiana Psychiatric Center, Inc. All the defendants except Kenneth Pierce filed motions to dismiss
Because of the mandate of State v. Rankin (1973), 260 Ind. 228, 294 N.E.2d 604 concerning the application of
I. The parents and grandparents
Mathes’ argument as to the parents and grandparents can be simply stated. He asserts Pierce resided with his mother and grandparents. He believes they knew that Pierce was insanely violent and dangerous.3 Mathes contends that as a result they had a responsibility to supervise Pierce and control his activities. He contends the breach of that duty resulted in Brenda Mathes’ abduction and death.
As § 319, Restatement (Second) of Torts makes clear, the premise upon which the sought-for duty rests is not any familial relationship of the parties. It depends instead upon the actual assumption of care and control of one known to be dangerous:
“One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.”
See also Sego v. Mains (1978), 41 Colo.App. 1, 578 P.2d 1069; Fisher v. Mutimer (1937), 293 Ill.App. 201, 12 N.E.2d 315; Whitesides v. Wheeler (1914), 158 Ky. 121, 164 S.W. 335.
Moreover, there is a countervailing policy consideration of which we must take note. As the court stated aptly in Alva v. Cook (1975), 49 Cal.App.3d 899, 123 Cal.Rptr. 166:
“Certainly no moral blame can be attached to the conduct of the sisters because they accepted the burden and responsibility of caring for a brother who legally possessed a rifle with no history of its use or abuse. Respondents in fact serviced the community by sheltering a brother who might have become a public charge . . . On the record before us we are satisfied that it would be unjust and morally wrong and against public policy to discourage humane and natural relationships between members of a family who are sensitive to and generous in the treatment of less fortunate members of their family.”
For the duty to exist there must therefore not only be an actual taking charge of the third person, there must also be a knowledge of the likelihood that he will cause bodily hаrm. Germane to that determination is the reliance such a custodian is reasonably entitled to place on expert medical, psychological or psychiatric advice.
Since the complaint against Pierce‘s mother and grandparents was broad enough
We find, however, that the suit was properly dismissed as to Pierce‘s father since it is clear that no custodiаl relationship existed between him and Kenneth.4 Donald Pierce‘s only asserted relationship to the events in question was that of father of twenty year old Kenneth. Liability upon his part cannot be predicated upon that relationship alone and dismissal was therefore proper. See, e. g., Broadstreet v. Hall (1907), 168 Ind. 192, 80 N.E. 145, 147.
II. The Psychiatric Centers
The complaint against Oaklawn alleged that about August 22, 1973, Pierce was submitted to its care for diagnosis and treatment; that the staff knew or should have known that it was extremely dangerous to release Pierce; and that their lack of care was a contributing proximate cause of Brenda Mathes’ death. Subsequently, Northeastern was added as a defendant under allegations that it had a contractual relationship with Oaklawn and was involved in evaluating, counseling and treating Pierce prior to October 13, 1973. It is further alleged that Northeastern‘s personnel knew or should have known that it would be extremely dangerous to the community tо release Pierce without extended treatment.
Again we note that our perspective in the light of Rankin at this stage of the proceedings focuses upon whether Mathes has stated any viable theory for recovery. In the absence of any showing of the facts and circumstances that existed, we feel it would be unwise to venture into any detailed analysis concerning liability questions in this area. However, our review of two primary issues urged by the centers leads us to conclude that Mathes is not yet foreclosеd from attempting to establish liability.
We agree with the centers that it is well established that, when between an alleged act of negligence and the occurrence of an injury, there intervenes the wilful, malicious and criminal act of a third party which causes the injury and which could not reasonably have been foreseen by the allegedly negligent party, the causal chain between the negligence and the injury is broken. Restatement (Second) of Torts § 448; Annot., 78 A.L.R. 471. However, if the centers, or either of them, had actually taken charge of Pierce within the meaning of § 319 Restatement (Second) of Torts as alleged in the complaint, and additionally had actual knowledge that Pierce was extremely dangerous, again as alleged in the complaint then we think they were bound to exercise reasonable care5 under the circumstances. If they did not, sufficient causation could exist. See, e. g., Leverett, Admx. v. State (1978), 61 Ohio App.2d 35, 399 N.E.2d 106; Tarasoff v. Regents of U. of Cal. (1976), 17 Cal.3d 425, 131 Cal. Rptr. 14, 551 P.2d 334.
Secondly, we are urged that the centers cannot be found liable upon the basis of negligent acts which may have been committed by psychiatrists or psychologists employed by them. In support the centers refer us to Iterman v. Baker (1938), 214 Ind. 308, 15 N.E.2d 365 in which our Supreme Court held that a hospital was not liable for the acts of physicians and surgeons who bore the relationship of independent contractor to the hospital.
In the present appeal it is sufficient answer to note that the complaint broadly alleged negligence on the part of the centers’ “staff” or “duly authorized personnel.” If under these allegations the plaintiff can
In addition, however, we are unable to aсcept the centers’ assertion that Iterman precludes their liability in any event for the actions of staff psychiatrists and psychologists for the reason that the centers themselves cannot be licensed to perform these services.
It is quite true that in Iterman the court stated as one ground for its holding that a hospital corporation by statute was prohibited from practicing medicine. But it did so on the facts before it because the complaint was stated upon the theory thаt the hospital corporation was engaged in the practice of medicine and that it had contracted to diagnose and treat Baker‘s injury. 214 Ind. 308, 15 N.E.2d at 369.
To that claim it was germane and reasonable to point out that a corporation could not secure a license to practice medicine; that indeed public policy opposed it. It is, however, a non sequitur to conclude that because a hospital cannot practiсe medicine or psychiatry, it cannot be liable for the actions of its employed agents and servants who may be so licensed. Similar logic would dictate that a city cannot be liable for the negligence of its employees in driving automobiles since the city cannot hold a driver‘s license or that a corporation cannot be liable for the misactions of its house counsel since it could hold a license to practice law.
We have no quarrel with the Iterman recognition that many physicians may hold staff privileges at one or more hospitals and that merely by treating a patient at a given hospital they do not thereby render the hospital liable on the basis of respondeat superior for some act of malpractice they may commit. Under such circumstances the proper question is whether they are an independent contractor or an employee. However, we find no logical basis for denying liability under proper circumstances on the ground that the professional must exercise a professional judgment that the principal may not properly control. The general rule of liability that presupposes authorization of the acts of the agent in order to bind the principal applies to a principal‘s contractual or non-tort liability. See, e. g., 3 Am.Jur.2d Agency § 261, p. 627. The tort liability of the principal expressed in the doctrine of respondeat superior is based not upon the agency relationship (authorization or ratification) but upon the employer-employee relationship. Thus, the touchstone for the principal‘s liability for the tortious acts of his agent is merely whether they are done within the course and scope of the employment. Pittsburgh C. C. & St. L. Ry. Co. v. Sullivan (1894), 141 Ind. 83, 40 N.E. 138; Miller v. Long (1956), 126 Ind.App. 482, 131 N.E.2d 348, reh. denied 126 Ind.App. 482, 132 N.E.2d 272. See also 3 Am.Jur.2d Agency § 267, p. 631.
In the present appeal we have as yet no substance from which to determine whether the employees of one or both оf the centers committed acts of negligence which may have proximately contributed to the death of Brenda Mathes.
We therefore reverse the dismissal of claims except as to Donald Pierce and remand to the trial court for such further proceedings as may be necessary.
Affirmed in part, reversed in part.
STATON, J., concurs.
HOFFMAN, P. J., concurs in part and dissents in part and files separate opinion.
HOFFMAN, Presiding Judge, concurring and dissenting.
I concur in the majority‘s finding that the complaint was properly dismissed as to Donald Pierce, but I dissеnt to the ruling that the complaint was prematurely dismissed as to the other defendants.
In order to state a claim for relief based on negligence, a complaint must allege sufficient facts to establish: 1) a duty on the part of the defendant in relation to the
Mathes bases his complaint against Donald and Sheila Pierce on the fact that they are the natural parents of Kenneth and were negligent in their care and supervision of him. The complaint also contains an allegation that Kenneth was twenty years old at the time of the incident.
At common law, the general rulе was that a parent was not liable for a child‘s torts. See, Moore v. Waitt (1973), 157 Ind. App. 1, 298 N.E.2d 456. Certain exceptions were carved out of this general principle. Thus, in Broadstreet v. Hall (1907), 168 Ind. 192, 80 N.E. 145, the Indiana Supreme Court held that a father was liable for the torts of his nine-year-old son, not by reason of a parent-child relationship, but rather, because they occupied the relationship of principal and agent, or master and servant. Another exception is found in Repczynski v. Mikulak (1927), 93 Ind.App. 491, 157 N.E. 464. There the Court held that a parent was liable for the damages caused by his fifteen-year-old son when the son negligently caused an automobile accident. The Court ruled that the parents themselves were negligent in consenting to their son‘s driving the automobile in violation of a statute.
The Legislature in 1957 enacted a statute to allow a victim, under certain circumstances, to recover damages from the parents of a child who commits a tort.
“Minors—Malicious or wilful destruction of property—Liability of parents.—Respecting any minor under the age of eighteen [18] years, the parent or parents with whom such minor is living and having custody of such minor, shall be liable for the actual damages sustained, but not exceeding the sum of seven hundred fifty dollars [$750] plus the court costs of the action, to any person, firm, association, corporation and the state of Indiana and its political subdivisions, including but without being limited to cities and towns, for any and all damage proximately causеd by the injury to or destruction of any property, real, personal or mixed by the intentional or wilful or malicious act or acts of such minor.” (Emphasis added.)
While it is apparent that in some cases a parent may be liable for the torts of a child, it is equally clear that such liability can only attach when the child is a minor. In the present case the complaint alleges that Kenneth had attained the age of majority. His parents were no longer legally resрonsible for his actions. The complaint therefore fails to state a claim against the parents.
The complaint also fails to state a claim against the grandparents. Mathes bases his claim of liability against the grandparents on their relationship of in loco parentis with Kenneth. A person who stands in loco parentis however, is charged only with the rights and duties of a parent. See, Sturrup v. Mahan et al. (1974), 261 Ind. 463, 305 N.E.2d 877. Inasmuch as the complaint fails to state a claim against the parents, it also fails to state a claim against the grandparents.
Mathes argues that Kenneth‘s parents and grandparents had a duty to control Kenneth which is similar to the duty of an owner of a vicious animal to prevent the animal from injuring others. He asks the question: “Should there be liability on a custodian for the vicious, irrational conduct of an animal, while at the same time there is no liability on the custodian for the vicious, irrational conduct of аn insane man?”
I refuse to make the analogy which Mathes requests. In a society which guarantees the rights and privileges of its people such a comparison cannot be drawn. These rights and privileges may be cur-
Reduced to the essentials, the complaint alleges that the psychiatric centers were negligent in: 1) releasing Kenneth as an outpatient, 2) failing to use reasonable care to diagnose and treat Kenneth, 3) failing to initiate or recommend the commenсement of a mental competency hearing, and 4) failing to make proper recommendations to Kenneth‘s parents and grandparents upon his release.
In order for the centers to have been negligent in releasing Kenneth, they must first have had a duty to confine him. Before such a duty can exist however, it must be determined if the psychiatric centers had any right to confine Kenneth.
At the time of the incident
It is apparent from the statutes that a court order was necessary to confine a person in a psychiatric hospital against his will. It is possible that confinement, without judicial authority, could have rendered a psychiatric institution liable for false imprisonment. The complaint here does not contain any allegations that either psychiatric center was authorized to confine Kenneth. Without such allegations the complaint fails to show a duty on the part of the psychiatric hospitals to confine Kenneth and was therefore properly dismissed with respect to the centers’ release of Kenneth as an outpatient.
A psychiatric hospital does have a duty to use reasonable care in the diagnosis and treatment of patients. It is also possible that a hospital has a duty to initiate mental competency hearings in appropriate cases. A hospital, through its physicians must exercise reasonable care in making judgments for the welfare of the patient. This duty however extends only to the patient and his family, not to members of the general public. Failure to use reasonable care may subjeсt a hospital or physician to a medical malpractice action, but such an action may be initiated only by the patient or his immediate family. The duty to use reasonable care in the diagnosis and treatment, including commitment proceedings, does not exist for the benefit of strangers to the physician-patient relationship. The complaint therefore fails to state a claim for relief in this regard.
The issue of whether or not the psychiatric cеnters had a duty to make proper recommendations to Kenneth‘s parents and grandparents is not before this Court. Assuming that such a duty could exist, the crucial issue is to whom the duty extends. The duty would obviously be for the benefit and well-being of the patient and his family. Here again, the duty would not extend to members of the general public. A psychiatric center has no duty to members of
The allegations in the complaint fail to establish a duty on the part of the parents, grandparents or psychiatric centers which extends to the plaintiff. The existence of a duty is an essential element in a negligence action. It is also a question of law to be decided by the court. Failure to allege sufficient facts in the complaint to establish a duty is fatal to the plaintiff‘s action. I would therefore affirm the judgment of the trial court dismissing the action for failure to state a claim.
Paul G. SIGSBEE and Cynthia I. Sigsbee, Appellant[s]-Defendant[s] Below, v. Charles SWATHWOOD, Jr., and Donna Swathwood, d/b/a Osolo Market, Appellee[s]-Plaintiff[s] Below.
No. 3-380A87
Court of Appeals of Indiana, Third District.
April 27, 1981.