Lead Opinion
In this рroceeding arising from Anthony Wayne Perreira’s (Perreira) suicide, plaintiffs-appellants Marilyn Lee, as special administratrix of the decedent’s estate, Felicidad Perreira, and Antone Per-reira (collectively, Appellants) appeal from a summary judgment granted in favor of defendants-appellees Manuel Corregedore and the State of Hawaii (collectively, Ap-pellees), in a wrongful death action. On appeal, Appellants contend that the circuit court erred in concluding that Appellees did not have a duty to prevent Perreira’s suicide. For the following reasons, we reject Appellants’ contention and affirm the summary judgment.
I. BACKGROUND
Perreira was a disabled Vietnam veteran who suffered from neurological and psychiatric problems. He was under the care of a psychiatrist and social worker at the Veterans Administration Clinic on Kauai. Additionally, Perreira regularly received help from Manuel Corregedore (Corregedore), a Veterans’ Services Counselor IV, at the State of Hawaii’s Office of Veterans’ Services.
Prior to working for the Office of Veterans’ Services, Corregedore had spent twenty-two years in the army. He had received an Associate of Arts degree in Liberal Arts from the University of Hawaii. Corregedore had no training or license in psychiatry or psychology; however, he did receive some training in mental health and suicide prevention while in the military.
According to its official job description, the duties of a Veterans’ Services Counselor IV included: identifying clients’ needs and problems; referring them for services related to their needs and problems; and helping clients obtain education, employment and benefits for which they are eligible.
making sure veterans receive all the benefits they are entitled to, coordinating with various agencies to procure the appropriate services, such as job training and educational programs and mental health services and counseling them regarding then-day-to-day problems.... The counseling which I provide to veterans consists of identifying their concerns or problems, and*157 explaining the options available to them to deal with the problem. The problems generally consist of housing, employment, financial, education or benefits matters.... I do not provide psychiatric or psychological services to the veterans I counsel. My counseling mainly consists of listening and empathizing with the veterans.... When confronted with a client with emotional or mental problems I always make arrangements for them to be seen by a mental health professional at the U.S. Veterans Center for evaluation and/or treatment.
Prior to their professional relationship, Perreira and Corregedore had known each other in a personal capacity since the 1960s. They had met each other through family connections and had accompanied each other to veterans’ meetings and family gatherings. They had even taken a ten-day trip to Disneyland together. Perreira had also lived at Corregedore’s home for a month.
Their professional relationship began when Perreira’s mother approached Corregedore at the Office of Veterans’ Services, seeking additional help for her son. Corregedore then initiated contact with Perreira by visiting Perreira at his house to assess which services he needed. The services that Cor-regedore ultimately provided included bill payments, a referral to a speech therapist, and informal visits where they would “talk story” and where Perreira would “let off steam.” Corregedore also participated in discussions about establishing a guardianship for Perreira; however, the guardianship never came to fruition.
Perreira had threatened to commit suicide at least two times prior to his death. In 1990, Perreira threatened to commit suicide during a conference between Corregedore, Perreira, Perreira’s father, Perreira’s psychiatrist and Perreira’s social worker. In March 1991, Perreira threatened to kill himself while he was at the police station being photographed and fingerprinted in connection with unspecified legal difficulties.
On the morning of July 19, 1991, Perreira called Corregedore at home to see if Cor-regedore would be at the Office of Veterans’ Services that morning. Thereafter, Perreira and his father arrived at Corregedore’s office at approximately 9:30 a.m. While waiting for Corregedore to finish with another client, Perreira told Corregedore’s secretary, Jocelyn Miyake, that he was going to “jump Hanapepe Bay Valley, if not I’m going to Kokee.” Perreira then asked Miyake to “write down what he wanted after he died.” The document that Perreira dictated to Mi-yake stated:
7-19-91
Anthony Perreira’s Request
All of his clothes to be given to the Salvation Army
Jewelry, Army Coat, and Camouflage Baseball Cap to be buried with him also Virgin Mary Stаtue.
All his money to be given to Parents.
TV. Bed to be left in his room.
[Signed]
Anthony W. Perreira
When Perreira saw Corregedore, he told Corregedore that he was going to kill himself at Hanapepe Bay Lookout. Corregedore told Perreira that he was going to call Per-reira’s social worker at the clinic and that they would all talk, but Perreira refused to listen and walked out of the office. As Per-reira was leaving the office, Miyake showed Corregedore the document that Perreira had dictated to her. According to Corregedore, he showed the document to Perreira’s father, told him about the suicide threat, and urged him “to keep an eye on [Perreira].” Conversely, Perreira’s father later claimed that this brief conversation did not take place. After Perreira and his father left, Correge-dore called Perreira’s social worker, Gary Malinoski, and told him of Perreira’s suicide threat; Malinoski said that he would follow up immediately, and did so, but it was too late to save Perreira. On his way home, Perreira asked his father to drive to Hana-pepe Bay Lookout. When the pair arrived at the lookout, Perreira got out of the car and jumped to his death.
II. STANDARD OF REVIEW
The issue in this case is whether the circuit court erred when it granted summary judgment in favor of Appellees on the basis that Corregedore owed no duty to prevent Perreira’s suicide. We. review the circuit court’s award of summary judgment de novo under the same standard applied by the circuit court. Maguire v. Hilton Hotels Corp., 79 Hawai'i 110, 112,
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits,' if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. A fact is material if proof of that fact would have the effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties.
Id. (citations, emphasis, and brackets omitted).
“The existence of duty ... is entirely a question of law.” Birmingham v. Fodor’s Travel Publications,
III. DISCUSSION
Appellants maintain that Appellees had a duty to prevent Perreira’s suicide, and, although the analysis is sometimes unclear, Appellants appear to posit three theories. First, Appellants contend that the duty arises from a “special relationship” between Veterans’ Services Counselors and their clients. Appellants argue that, “Correge-doré’s duty was the same as any mental health professional to his client,” when a suicide was foreseeable. Appellants express their second theory by asserting that “Per-reira’s suicide was entirely foreseeable giving rise to a duty on the part of Appellee Cor-regedore,” and thus, Appellants seem to assert that foreseeability alone is sufficient to create a duty on the part of counselors to prevent the suicides of their noncustodial clients. Third, Appellants “seek a ruling from the Court that recognizes the protected status of veterans, as a class, and determines that the lower court erred in finding that Mr. Corregedore had no duty in the instant ease.” Apparently, this is a claim that Cor-regedore had a statutory duty to prevent the suicide pursuant to Hawaii Revised Statutes (HRS) Chapter 363 (1993), Veterans Rights and Benefits.
A. Counselors Do Not Have a Duty to Prevent the Suicides of Noncustodial Clients, Regardless of Whether the Suicides Are Foreseeable
“A prerequisite to any negligence action is the existence of a duty owed by the defendant to the plaintiff[,]” Maguire,
The exceptions to this general rule arise when a “special relationship” exists between ' the actor and the individual facing harm. In determining whether such a relationship exists, section 314A(4) of the Restatement (Second) of Torts (1965)
Thus, in the absence of custody, we have held that a prosecuting attorney and a mentally ill criminal defendant did not have a special relationship sufficient to impose a duty on the prosecuting attorney to prevent the mentally ill criminal defendant from murdering a fifteen year old girl, despite that a court had acquitted and released the mentally ill criminal defendant only under the condition that he continue to receive psychiatric treatment from a court-appointed psychiatrist, who, in turn, was required to send monthly progress reports to the prosecuting attorney and the court. Seibel v. City and County of Honolulu,
To begin with, we find it useful to examine the reasons for a similar duty which can be imposed in other relationships, such as that of a parent to control his child, a master to control his servant, and an institutional custodian to control its wards. The basis for imposing a duty on the parent, master or institutional custodian to control the conduct of a child, servant or ward is that, because of the relationship between the parties, the parent, master or institutional custodian is able or should be able to foresee the risk created by the other and can or should be able to take precautions against that risk. However, unlike the parent, master or institutional custodian who has De facto or De jure custody or control over the child, servant • or ward, the [prosecuting attorney] did not have custody or control over [the mentally ill criminal defendant]. In the absence of control over [the mentally ill criminal defendant], we find no special relationship between the [prosecuting attorney] and [the mentally ill criminal defendant]....
... The prosecuting attorney did not, and ordinarily does not, exercise a degree of supervision over a conditionally released defendant which could compel a conclusion that the professional relationship between the parties was a form of custody.
Id. at 260,
On the other hand, when the State has actually had custody of a person, such as a prisoner, we have held that the “[S]tate, by reason of the special relationship created by its custody of [the] prisoner, is under a duty
The duty arises out of the deprivation by the state of the prisoner’s normal opportunities to protect himself, particularly through places or situations which involve risk. When the custodial authorities are charged with knowledge that the prisoner may incur harm unless preclusive measures are taken, reasonable care must be exercised to prevent such harm.
... Since the danger arose from the exercise of the State’s authority over appellant as a prisoner, a duty to exercise reasonable care to avoid the danger arose on familiar tort principles.
Id. at 563-65
The general rule regarding the protection of others also applies to suicide prevention. Generally, an actor will not be held liable for the suicide of another “because suicide constitutes an independent intervening act so extraordinary as not to have been reasonably foreseeable by the original tortfeasor.” McPeake v. William T. Cannon, Esquire, P.C.,
Although duty is comprised of two mutually dependent elements, Appellants’ arguments focus on the need for a special relationship, which is, in essence, a threshold determination. Accordingly, if there is no special relationship, then there is no duty. Due to the absence of Hawaii ease law focusing on the type of special relationship required to impose a duty on an actor to prevent the suicide of another person, we turn to other jurisdictions for guidance.
“To reach the conclusion that a special relationship exists, it must be assumed that the harm to be prevented by the defendant is one that the defendant is in a position to protect against and should be expected to protect against.” Donaldson v. YWCA,
Accordingly, we have followed the Restatement (Second) of Torts § 314A(4) and recognized a reasonable duty of care to prevent suicidе only on the part of a defendant who had actual custody of a suicidal person. Figueroa v. State,
The State’s duty to Michael to exercise reasonable care arises from the relationship created between the two as a result of Michael’s commitment to the Boys’ Home. Michael was committed to the Boys’ Home by the Family Court and so long as he was in its custody, the law provides that the director of social services “shall be the guardian of the person of every child committed to or received at” H[awai‘i Youth Correctional Facility]. HRS § 352-9 (1976); see Restatement (Second) of Torts § 314A(4).
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In the view we take of this case, ... the State’s negligence, if any, upon which liability for the injuries sustained by Michael may be imposed, can only be predicated on the manner of the observation and supervision of Michael in the isolation cell after he was confined in isolation as a result of his runaway attempt.
Id. at 376-77,
Figueroa is distinguishable from the instant case because, unlike the plaintiff in Figueroa, Perreira was not a prisoner of the State, and thus, Corregedore and the State did not have custody, control, guardianship, or authority over Perreira. Additionally, while the incarcerated plaintiff in Figueroa was a mere juvenile, Perreira was a forty-two year old man who, as an independent adult, had the right to enter and leave the Veterans Administration Clinic and the Office of Veterans’ Services as he pleased, as well as the right to make his own decisions regarding his health care. Pursuant to Hawai'i case law and the Restatement (Second) of Torts § 314A(4), because Perreira was not in the custody of Corregedore and the State, a special relationship did not exist to impose a duty on Corregedore and the State to prevent Perreira’s suicide.
The dissent’s gratuitous citation to Touchette v. Ganal,
Wendy Touchette was severely injured, and her husband and two children killed, in a fire deliberately set by Orlando Ganal. Tou-chette, in her individual capacity and as spe
This court agreed. After reviewing sections 314 and 315 of the Restatement, we explained that, “applied to the present ease, Mabel would owe a duty to appellant under sections 315 and 314A only if Mabel bore a ‘special relation’ to either appellant or Ganal[,]” id. at 299,
In Touchette, we further explained, however, that the circuit court erred in dismissing Touchette’s complaint against Mabel solely on the basis that Mabel owed Touchette no duty pursuant to sections 315 and 314A. Because (1) “[a] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that no relief can be granted under any set of facts that can be proved in support of its allegations[,]” id. at 303,
Sections 302, 302A, and 302B have no application in this case. As we noted in Tou-chette,
[section 302] is concerned only with the negligent character of the actor’s conduct, and not with his [or her] duty to avoid the unreasonable risk. In general, anyone who does an affirmative act is under a duty to others to exercise the care of a reasonable [person] to protect them against an unreasonable risk of harm to them arising out of the act. The duties of one who merely omits to act are more restricted, and in general are confined to situations where there is a special relation between the actor and the other which gives rise to the duty.
Id. at 301-02,
Case law from other jurisdictions supports our holding. “Liability against therapists for outpatient suicides is rarely imposed, ... and some commentators have suggested that liability under these circumstances should never be imposed.” Eisel v. Board of Education,
For example, despite that the California Supreme Court had already held that a psychotherapist had a duty to warn others when a patient under the psychotherapist’s care was likely to cause personal injury to a third party, Tarasoff v. Regents of the University of California,
The imposition of a duty upon a psychiatrist to disclose to others vague or even specific manifestations of suicidal tendencies on the part of the patient who is being treated in an out-patient setting could well inhibit psychiatric treatment. In his ami-cus brief, counsel points out that the dynamics of interaction between the psychotherapist and the patient seen in office visits are highly complex and subtle. Intimate privacy is a virtual necessity for successful treatment. Were it not for the assurance of confidentiality in the psyehó-therapist-patient relationship, many in need of treatment would be reluctant to seek help. Even those who do seek help under such circumstances may be deterred from fully disclosing their problems. An element usually assumed essential is the patient’s trust that matters disclosed in therapy will be held in strict confidence. (See Fleming and Maximov, The Patient or His Victim: The Therapist’s Dilemma (1974) 63 Cal.L.Rev. 1025, 1041.)
We conclude that Tarasoff v. Regents of University of California, supra,17 Cal.3d 425 ,131 Cal.Rptr. 14 ,551 P.2d 334 , requires only that a therapist disclose the contents of a confidential communication where the risk to be prevented thereby is the danger of violent assault, and not where the risk of harm is self-inflicted harm or mere property damage. We decline to further extend the holding of Tarasoff.
Id.
In considering whether to recognize a duty of care on the part of counselors, the Nally court stated that it must consider several factors, including the issue of whether a special relationship exists between suicidal individuals and their counselors, the foreseeability of harm to the injured party, the degree of certainty that the injured party suffered injury, the closeness of the connection between the defendants’ conduct and the injury suffered, the moral blame attached to the defendants, the policy of preventing 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. Id. at 105-06,
Bellah ... never imposed an affirmative duty on a psychiatrist to see that his patient does not ... harm 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 ... [the Bellah court] never decided the duty issue.
Id. at 107 n. 6,
The Nally court also analyzed “the closeness of the causal connection between defendants’ conduct and the injury suffered, and the foreseeability of the particular harm to the injured party.” Id.
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.
Id. at 108 n. 7,
With respect to the foreseeability of the particular harm to the injured party,
[o]ne 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. 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.
Id. at 108,
Additionally, the Nally court focused on public policy considerations:
Imposing a duty on defendants or other nontherapist counselors to ... 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.... [T]he indeterminate nature of liability ... [of] nontherapist counselors could deter those most in nеed of help from seeking treatment out of fear that their private disclosures could subject them to involuntary commitment to psychiatric facilities.
... [N]either 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. Indeed, for all practical purposes, a doctor to whom a nontherapist counselor refers a suicidal person may refuse to take the patient.
We also note that the Legislature has exempted the clergy from the licensing requirements applicable to marriage, family, child and domestic counselors and from the operation of statutes regulating psychologists. In doing so, 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.
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.
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Even assuming that workable standards of care [for nontherapist counselors] 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. 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.
Id. at 108-10,
Finally, the Nally court addressed the availability, cost, and prevalence of insurance for nontherapist counselors and “lawsuits stemming from spiritual counseling[.]” Id. at 110,
Thus, the Natty court rejected the argument that the duty to prevent suicide or the general professional duty of care should be extended to a “nontherapist counselor who offers counseling to a potentially suicidal person on secular or spiritual matters.” Id. at 110,
In contrast with the California Supreme Court, we have not had the opportunity to address whether counselors have such a duty until now. However, similar to the Natty court, we find no eases in our jurisdiction supporting the finding of a special relationship between counselors and their noncustodial clients sufficient to impose a duty upon counselors to prevent their clients’ suicides. Our holding in Figueroa, the Restatement (Second) of Torts § 314A(4), and relevant California cases weigh against creating such a duty. See Figueroa,
In considering whether to impose a duty of reasonable care on a defendant, we recognize that duty is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection. Waugh v. University of Hawaii,
In addition to the lack of a special relationship between counselors and their noncustodial clients, we also regard other factors as relevant that the Natty court emphasized in refusing to impose a duty upon counselors. Similar to the Natty court, we deem the causal connection between Corregedore’s conduct and Perreira’s suicide as tenuous, because counselors such as Corregedore are not professional medical experts on suicide. Moreover, without custody and control over an independent adult client, a counselor has little, if any, control over the client’s decision-making when the client is beyond the confines of the counselor’s office.
Public policy considerations weigh against imposing a duty on all counselors to prevent the suicides of noncustodial clients, because the imposition of such a broad duty could have a deleterious effect on counseling in general. Cf. Nally,
The Hawaii legislature has indicated that, with respect to government’s involvement in mental health care, victims of emotional disorders should be “treat[ed] and rehabilitate[d] ... in the least restrictive and most therapeutic environment possible.” HRS § 334-2 (1993) (emphases added). Were it not for the assurance of confidentiality in the counselor-client relationship, many in need of counseling would be reluctant to even seek counseling, and those who do seek counseling under such circumstances would probably be deterred from fully disclosing their problems to their counselors. Cf. Bellah, 146 CaLRptr. at 539.
Furthermore, there is authority suggesting that health care workers can be subject to civil liability by disclosing confidential information to third parties. For example, an appellate court in North Carolina acknowledged that a woman could maintain a cause of action against a marital and family counselor for his allegedly unauthorized disclosure of confidential information about her to medical doctors. Watts v. Cumberland County Hospital System, Inc.,
Various theories have been suggested as a basis for the cause of action, including invasion of privacy, breach of implied contract, breach of fiduciary duty or duty of confidentiality, and medical malpractice.*168 Courts considering the issue have not agreed upon the proper characterization of the cause of action and, in some cases, have held that liability may be imposed under more than one theory.
Watts,
Neither the legislature nor the courts in Hawaii have ever imposed a legal obligation on persons to take affirmative steps to prevent the suicide of someone who was not in their custody. In an analogous situation, while addressing the issue of whether absolute judicial immunity protected a court-appointed psychiatrist from liability, we noted our reluctance to impose a duty upon a psychiatrist to prevent noncustodial patients from causing harm to third-parties:
There is much uncertainty in the diagnosis and treatment of mental illness and in the prediction of future behavior. As the court stated in Hicks v. United States,511 F.2d 407 , 415 (D.C.Cir.1975):
A claim of negligence must be considered in light of the elusive qualities of mental disorders and the difficulty of analyzing and evaluating them. Exactitude is often impossible. The Supreme Court has recently noted “the uncertainty of diagnosis in this field and the tentativeness of professional judgment.” Error and uncertainty considered alone must often be accepted without labeling them negligence. (Citations omitted.)
We must consider appellants’ allegations in light of the elusive qualities of mental health diagnosis and treatment.
*169 We must also evaluate appellants’ allegations in light of the goal of treatment, recovery and rehabilitation of those afflicted with a mental disease, defect or disorder. A consequence of imposing liability on a doctor was recognized by the court in Taig v. State, 19 App.Div.2d 182,241 N.Y.S.2d 495 , 496-97 (1968), which stated: “If a liability were imposed on the physician or the State each time the prediction of future course of mental disease was wrong, few releases would ever be made and the hope of recovery and rehabilitation of a vast number of patients would be impeded and frustrated.”
Seibel v. Kemble,
Imposing a duty on counselors to prevent the suicides of noncustodial clients by breaching counselor-client confidentiality would be contrary to the trend in the Hawai'i legislature to allow adult persons greater freedom in making health care decisions that affect only themselves (as opposed to third persons). With respect to mental health care, the Hawaii legislature has specifically declared “that all persons have the fundamental right to control decisions relating to their own medical care, including the decision to accept or refuse medical treatment, including the administration of psychotropic drugs, by a health care provider for a psychotic condition.” HRS § 327F-1 (1993) (emphases added). This fundamental decision-making right with respect to one’s own health care also extends to “the decision to have medical or surgical means or procedures calculated to prolong their lives ... withheld, or withdrawn.” HRS § 327D-1 (1993) (emphases added).
Forcing counselors to breach counselor-client confidentiality would also be contrary to the trend in the Hawaii legislature to protect communications from disclosure that are related to mental health counseling. For example, Rule 504.1 of the Hawaii Rules of Evidence (HRE) protects confidential communications between psychologists and their clients when such communications are made for the purpose of counseling:
A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of counseling or psychotherapy with respect to behavioral problems, including substance addiction or abuse, among oneself, the client’s psychologist, and persons who are participating in the counseling or psychotherapy under the direction of the psychologist, including members of the client’s family.
HRE Rule 504.1(b) (1993) (emphases added).
In addition to holding “that confidential communications between a licensed psychotherapist and her patients in the course of diagnosis or treatment are protected from compelled disclosure under Rule 501 of the Federal. Rules of Evidence” (FRE),
The reasons for recognizing a privilege for treatment by psychiatrists and psycholo*170 gists apply with equal force to treatment by a clinical social worker.... Today, social workers provide a significant amount of mental health treatment. Their clients often include the poor and those of modest means who could not afford the assistance of a psychiatrist or psychologist, but whose counseling sessions serve the same public goals. Perhaps in recognition of these circumstances, the vast majority of States explicitly extend a testimonial privilege to licensed social workers. We therefore agree with the Court of Appeals that drawing a distinction between the counseling provided by costly psychotherapists and the counseling provided by more readily accessible social workers serves no discernible purpose.
Jaffee, — U.S. at - - -,
Indeed, the Hawaii legislature has specifically decided that communications between a counselor and a victim of sexual assault, domestic abuse or child abuse are confidential and “privileged” to the samé degree as psychotherapist-patient communications:
A victim has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made to a victim counselor for the purpose of counseling or treatment of the victim for the emotional or psychological effects of sexual assault, domestic violence, or child abuse or neglect, and to refuse to provide evidence that would identify the name, location, or telephone number of a safe house, abuse shelter, or other facility that provided temporary emergency shelter to the victim.
HRE Rule 505.5(b) (1993) (emphases added).
This rule, which resembles victim-counselor privilege provisions now in existence in some twenty states, e.g., Cal. Evid.Code §§ 1035 through 1037.7 (1992), encourages and protects the counseling of emotionally distressed victims of violent crimes by according privilege status to confidential communications made in the course of the counseling process. In adopting a similar law, N.J. Stat. Ann. § 2A:84A-22.13 and 22.15 (1991), the New Jersey Legislature declared that the “counseling of victims is most successful when the victims are assured [that] their thoughts and feelings will remain confidential and will not be disclosed without their permission.” The present provision proceeds upon just such a policy basis.
Commentary to HRE Rule 505.5 (1993).
Furthermore, because many members of the clergy (e.g., priests, ministers, rabbis, and native Hawaiian kahunas) serve as counselors, such as the “pastoral counselors” in Nally,
Rule 506 Communications to clergy....
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(b) General rule of privilege. A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a member of the clergy in the latter’s professional character as spiritual advisor.
(c) Who may claim the privilege. The privilege may be claimed by the communicant or by the communicant’s guardian, conservator, or personal representative. The member of the clergy may claim the privilege on behalf of the communicant. Authority to do so is presumed in the absence of evidence to the contrary.
Haw. R. Evid. 506 (1993).
The present rule accords generally with the prior statute but broadens the scope of the privilege slightly in two particulars. Under the prior statute the privilege was limited to confidential communications made “according to the uses of the church or religious denomination to which [the. clergyman] belongs.” There seems no good reason to limit the privilege in this way so long as confidentiality was intended by the communicant. The present rule clarifies that uncertain point, granting the privilege to all confidential communications made to the clergyman in his professional capacity as a spiritual advisor. In addition, the privilege is extended to cover confidential communications to one who is not a clergyman if the person making the*171 communication reasonably believes that he is.
Commentary to Haw. R. Evid. 506 (1993). Thus, the imposition of a duty on counselors to prevent the suicides of noncustodial clients would constitute a broad public policy decision with respect to mental health care, personal autonomy and confidential communications which, under these circumstances, is best left to the branch of government vested with the authority and fact-finding ability to make such broad public policy decisions, namely the Hawai'i legislature.
We are aware of one instance in which a court held that “school counselors [at a middle school] have a duty to use reasonable means to attempt to prevent a [student’s] suicide when they are on notice of a child or adolescent student’s suicidal intent”. Eisel v. Board of Education,
The Eisel and Brooks courts also based their holdings on statutes that imposed a duty on schools to protect children from suicides. In Eisel, the Maryland “General Assembly ha[d] made it quite clear [through the Youth Suicide Prevention School Programs Act] that prevention of youth suicide is an important public policy, and that local schools should be at the forefront of the prevention effort.” Eisel,
Indeed, if we were to impose a duty on counselors to prevent the suicides of noncustodial adults such as Perreira, we would have to address whether such government intervention violates the constitutional rights of adult persons who wish to commit suicide. Cf. State v. Cotton,
Where a duty assigned to a public employee is ineptly performed, but the risk of harm to individuals in the community is not increased thereby as compared to that which would have existed had no governmental action been attempted, there may be strong policy considerations against recognizing governmental tort liability for the harms which the public employee failed to prevent.
Ajirogi v. State,
B. HRS Chapter 363, Veterans Rights and Benefits, Does Not Create A Statutory Duty Of Care.
Although it is not explicitly stated, Appellants also seem to advance an argument that HRS Chapter 363 creates a statutory duty of care. Duty in a negligence action may be defined by common law or by statute.
This court applied the foregoing principles in Hulsman v. Hemmeter Development Corp.,
However, by its terms, the statute does not impose a duty on the seller of a firearm in the sale to a mentally deranged person or one who is adjudged insane. The underlying legislative history does not manifest an intent on the part of the legislature to impose a duty of care on the seller of a firearm through the statute. Thus, a viola*173 tion of this statutes [sic] does not impose a duty ... from which an actionable claim can be maintained.
Id. at 66-67,
If a statute “contains no express provision that its violation shall result in tort liability, and no implication to that effect, the court may, and in certain types of cases customarily will, adopt the requirements of the enactment as the standard of conduct necessary to avoid liability for negligence.” Restatement (Second) of Torts § 285 comment c (1965). Courts may adopt the requirements of a statute as the standard of care when the purpose of the statute is to “protect a class of persons which includes the one whose interest is invaded[.]” Restatement (Second) of Torts § 286(a) (1965).
provide only for criminal liability, and not for civil liability; or in rare instances, it may merely prohibit certain conduct, and contain no provision for any liability at all. In such cases, the initial question is whether the legislation or regulation is to be given any effect in a civil suit. Since the legislation has not so provided, thе court is under no compulsion to accept it as defining any standard of conduct for purposes of a tort action.
Restatement (Second) of Torts § 286 comment d (1965). In sum, a statute that is meant to protect a class of persons may be the basis for a standard of care when the statute provides for criminal liability or, less often, when it prohibits or proscribes conduct.
HRS Chapter 363, Veterans Rights and Benefits, has a variety of purposes. For example, HRS § 363-3 (1993) provides that the Office of Veterans’ Services shall: maintain and supervise a center for veterans, their families and dependents providing information and referral for services, assis-tanee, or benefits; cooperate with other agencies in the community to coordinate available services; assemble, analyze, compile, and disseminate factual up-to-date information with respect to available benefits, rights and services, as well as information about the structure, functions, and area of service of any agencies and organizations participating in the veterans’ assistance program; cooperate with federal departments and other agencies that administer veterans’ rights and benefits; and compile and submit a yearly report on the activities, operations, disbursements and expenditures of the Office of Veterans’ Services to the Governor. HRS § 363-3.5 (1993) establishes a policy advisory board for veterans’ services. HRS §§ 363-4 and 363-5 (1993) establish veterans’ cemeteries on all of the islands and set up councils on each island to maintain the cemeteries and provide for the interment of the remains of Hawaii’s veterans.
HRS Chapter 363 does not specify standards of conduct on the part of Veterans’ Services Counselors necessary to avoid liability for negligence, nor can such standards of conduct be inferred from the chapter’s language. Moreover, the legislative history reveals no intent to create a standard of care on the part of Veterans’ Services Counselors. Although HRS Chapter 363 benefits a class of citizens, it is not penal in nature and does not proscribe conduct. Therefore, we hold that HRS Chapter 363 does not create a statutory duty of care on the part of Veterans’ Services Counselors.
IV. CONCLUSION
For the foregoing reasons, we hold that Appellees did not have a duty to prevent Perreira’s suicide, and we affirm the circuit court’s summary judgment in fаvor of Appel-lees.
Notes
. The official job description of a Veterans' Services Counselor IV specifies numerous duties including the following which are relevant to the instant appeal:
A. Veteran Services
1. Interview and counsel eligible clients; identify their particular needs or problems; decide the appropriate action to be taken and provide the necessary services; apply various interviewing and counseling techniques in assisting the clients to seek further education, suitable employment, and/or benefits for which they may be eligible.
. The Restatement (Second) of Torts § 314A (1965) provides:
§ 314A. Special Relations Giving Rise to Duty to Aid or Protect
(1)A common carrier is under a duty to its passengers to take reasonable action
(a) to protect them against unreasonable risk of physical harm, and
(b) to give them first aid after it knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others.
(2) An innkeeper is under a similar duty to his [or her] guests.
(3) A possessor of land who holds it open to the public is under a similar duty to members of the public who enter in response to his [or her] invitation.
(4) One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his [or her] normal opportunities for protection is under a similar duty to the other.
. Rule 501 of the Federal Rules of Evidence states as follows:
Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law.
. Restatement (Second) of Torts § 285 (1965) provides in relevant part:
§ 285. How Standard of Conduct is Determined.
The standard of conduct of a reasonable man [or woman] may be
(a) established by a legislative enactment or administrative regulation which so provides, or
(b) adopted by the court from a legislative enactment or an administrative regulation which does not so provide,....
. Restatement (Second) of Torts § 286(a) (1965) provides in relevant part;
§ 286. When Standard of Conduct Defined by Legislation or Regulation Will Be Adopted The Court may adopt as the standard of conduct of a reasonable man [or woman] the requirements of a legislative enactment or an administrative regulation whose purpose is found to be exclusively or in part
(a) to protect a class of persons which includes the one whose interest is invaded,....
Dissenting Opinion
in which KLEIN, Justice, joins, dissenting.
I agree with the majority that the presence of a legally cognizable “special relation
I. PRELIMINARY RUMINATIONS
First, the majority places far too much emphasis on the lack of a “custodial” relationship between Corregedore and Perreira. The majority asserts that its “review of cases in other jurisdictions advances only one type of special relationship that consistently imposes a duty on an actor to prevent another’s suicide, namely a relationship predicated on a custodial relationship.” Majority opinion at 160,
Beyond perceiving one context in which the traditional restrictive rule has consistently been relaxed, these cases neither speak to nor preclude other contexts in which a similar duty should be recognized. The majority correctly acknowledges that a custodiаl relationship is simply one example in a list of “Special Relations Giving Rise to Duty to Aid or Protect” described in the Restatement (Second) of Torts § 314A (1965), see majority opinion at 159 & n. 2,
The majority seems to misapprehend the meaning of “non-exclusive.” “ ‘Exclusive’ means ‘with no exceptions’ and should be used carefully,” A Dictionary of Modern Legal Usage 336 (2d ed. 1995), or “not admitting of something else,” or “limited to the object or objects designated.” Webster’s Encyclopedic Unabridged Dictionary of the English Language 497 (1989). A “non-exclusive” list, therefore, is not limited to the object or objects designated and is subject to exception and does admit of something else. I fail to comprehend how the recognition of a duty in one context, in and of itself, can “weigh against” the recognition of another duty in a different context, unless the two are mutually exclusive. Accordingly, the absence of a custodial relationship between Corregedore and Perreira does not end—but merely begins—a complete and cogent analysis of the dispositive issue presented in this appeal.
Second, the majority overlooks the salient fact that distinguishes the present case from every decision cited in its opinion—the clear “foreseeability” of Perreira’s suicide, which there is no dispute in the record that Cor-regedore fully recognized and, by his own conduct (ie., telephoning Perreira’s social worker), took at least some action to seek to prevent. Cf., e.g., Seibel v. Kemble,
Although I agree that “[m]ere 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,” Nally v. Grace Community Church,
Third, the majority artificially inflates the significance of the “actor’s” formal training and professional licensing. These qualifications are clearly relevant where there is a genuine issue of material fact regarding the “foreseeability” of preventable harm. See, e.g., Cygan,
Thus, the status of Corregedore’s formal training and licensing is relevant in the present case only to the question whether he acted reasonably to seek to prevent
Justice is not always served by slavish adherence to limited applications of established doctrines. In Johnston v. KFC Nat’l Management Co.,
“[A]s our ideas of human relations change[,] the law as to duties changes with them.... Changing social conditions lead constantly to the recognition of new duties.” W.P. Keeton, Prosser & Keeton on The Law of Torts § 53, at 359 (5th ed. 1984). This court, however, is reluctant to impose a new duty upon members of our society without any logical, sound, and compelling reasons taking into consideration the social and human relationships of our society.
As the Connecticut Supreme Court aptly stated:
“Experience can and often does demonstrate that a rule, once believed sound, needs modification to serve justice better.... The adaptability of the common law to the changing needs of passing time has been one of its most beneficent characteristics!!.]”
Ely v. Murphy,207 Conn. 88 , 94,540 A.2d 54 , 57 (1988) (quoting Herald Publishing Co. v. Bill,142 Conn. 53 , 62,111 A.2d 4 , 8 (1955); Ozyck v. D’Atri,206 Conn. 473 , 482-83,538 A.2d 697 , 702 (1988) (Healey, J., concurring)).
(Brackets in original.)
While, traditionally, “[t]he fact that the actor realizes or should realize that action on his part is necessary for another’s aid or protection does not of itself impose upon him a duty to take such action,” Restatement (Second) of Torts § 314 (1965), the commentary to this “traditional” rule regarding duty notes that:
The origin of the rule lay in the early common law distinction between action and inaction, or “misfeasance” and “non-fea-sance.” In the early law one who injured another by a positive affirmative act was held liable without any great regard even for his fault. But the courts were far too much occupied with the more flagrant forms of misbehavior to be greatly concerned with one who merely did nothing, even though another might suffer serious harm because of his omission to act. Hence liability for non-feasance was slow to receive any recognition in the law. It appeared first in, and is still largely confined to, situations in which there was some special relation between the parties, on the basis of which the defendant was found to have a duty to take action for the aid or protection of the plaintiff.
The result of the rule has been a series of older decisions to the effect that one human being, seeing a fellow man in dire рeril, is under no legal obligation to aid him, but may sit on the dock, smoke his cigar, and watch the other drown. Such decisions have been condemned by legal writers as revolting to any moral sense, but thus far they remain the law. It appears inevitable that, sooner or later, such extreme cases of morally outrageous and indefensible conduct will arise that there will be further inroads upon the older rule.
Restatement (Second) of Torts § 314 comment c (emphasis added).
I grant that the majority’s unwillingness to recognize any duty on Corregedore’s part in the present case may not be “revolting to any moral sense” (emphasis added), although it is to mine. Reasonable minds might differ
Understanding the subjectivity of my personal “moral sense” (as well as the majority’s), but considering Corregedore’s official job description and the analysis set forth in the cases cited in the majority opinion, see section II.B. of this opinion, infra, I would recognize a legally cognizable duty on Cor-regedore’s part to take reasonable action to seek to prevent Perreira’s “foreseeable” suicide, of which he was placed on actual notice.
“‘[Djuty’ is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.” Cootey v. Sun Inv., Inc.,
I am fully aware that “whether a duty exists is a question of fairness that involves a weighing of the nature of the risk, the magnitude of the burden of guarding against the risk, and the public interest in the proposed solution.” Hao v. Campbell Estate,
But the duty that we should recognize in the present ease—that a Veterans Service Counselor must employ reasonable means to seek to prevent a suicide when on actual notice of a client’s suicidal intent—is not only a modest one, but is supported by “logical, sound, and compelling reasons.” On the record before us, for example, the trier of fact could reasonably find that Corregedore. could easily have warned Perreira’s father of the immediate danger posed by Perreira’s threat of self-destruction. And, as the majority takes pains to recite, there is a genuine issue of fact as to whether Corregedore did so. Corregedore testified that he advised Per-reira’s father of Perreira’s threat of suicide and urged him “to keep an eye on [Per-reira].” On the other hand, Perreira’s father claimed that Corregedore did not. Majority opinion at 157,
“[Wjeighing ... the nature of the risk, the magnitude of the burden of guarding against the risk, and the public interest in the proposed solution,” Hao,
II. CORREGEDORE WAS SUBJECT TO A DUTY TO EMPLOY REASONABLE MEANS TO SEEK TO PREVENT PERREIRA’S INTENDED SUICIDE, OF WHICH HE HAD ACTUAL NOTICE, BECAUSE HE WAS OFFICIALLY CHARGED WITH THE RESPONSIBILITY OF SAFEGUARDING THE PSYCHOLOGICAL AND PHYSICAL WELL-BEING OF HIS CLIENTS.
A. Corregedore’s Job
As noted above, Corregedore worked as a Veterans Services Counselor IV in the employ of the Kaua'i office of the State of Hawai'i Department of Defense, Office of
Consonant with his official position description, Corregedore described his job duties in an affidavit as
making sure veterans receive all the benefits they are entitled to, coordinating with various agencies to procure the appropriate services, such as ... mental health services and counseling them regarding their day-to-day problems.
... The counseling which I provide to veterans consists of identifying their concerns or problems, and explaining the options available to them to deal with the problem.
Corregedore’s position as a counselor, therefore, required him to ensure that Per-reira received all of the benefits and services he needed and was entitled to, including mental health services and counseling. Concerning the counseling services that he provides directly, Corregedore’s affidavit averred that
I do not provide psychiatric or psychological services to the veterans I counsel. My counseling mainly consists of listening and empathizing with the veterans.
... When confronted with a client with emotional or mental problems I always make arrangements for them to be seen by a mental health professional at the U.S. Veterans Center for evaluation and/or treatment.
Thus, even though Corregedore did not directly provide psychiatric counseling to veterans, he was, as a Veterans Services Counselor, responsible for ensuring that veterans received such psychiatric, counseling as he perceived that they needed. For that reason, Corregedore bore a professional responsibility that I believe established a “special relationship” with his clients, thereby giving rise to a legally cognizable duty to take reasonable action to seek to prevent their “foreseeable” suicides, of which he was on actual notice.
B. Of The Various Counseling Cases Cited In The Majority Opinion, The Relationships Under Examination in The Eisel and Brooks Opinions Most Closely Resemble The Relationship Between Cor-regedore And Perreira And, Thus, Are Far More Instructive Than The Cases Concerning Licensed ' Mental Health Professionals Or Pastoral Counselors.
The majority cites decisions from several jurisdictions to support its foundational view that a duty—potentially giving rise to tort liability—should not be recognized with respect to therapists, based upon a failure to take reasonable action to prevеnt outpatient suicides. See majority opinion at 164-166,
One fundamental flaw in the majority’s analysis is that it treats fungibly all persons who in any way engage in any form of interaction that could be legitimately be characterized as “counseling.” Thus, the majority disingenuously posits the “slippery slope” proposition that recognizing any duty on Corregedore’s part in the present case would automatically dictate the imposition of a duty “to prevent suicides” on all “counselors” in all contexts:
Public policy considerations weigh against imposing a duty on all counselors to prevent the suicides of noncustodial clients, because the imposition of such a broad duty could have a deleterious affect on counseling in general. For example, a duty to prevent suicides would force a counselor (e.g., a veterans services counsel- or, a spousal abuse counselor, a chemical dependency counselor, a marriage counsel- or, a priest, a rabbi, a minister, a native Hawaiian kahuna, or even a telephone hotline counselor) to breach counselor-client confidentiality and disclose a client’s suicidal disposition to all of the client’s immediate relatives, regardless of whether the client would prefer to keep such sensitive and potentially embarrassing information confidential.
Majority opinion at 170-171,
Without any principled or analytically necessary reason for doing so, the majority thus artificially pries open the floodgates. There is no rational basis for suggesting that all counselors should be treated generically; the unique characteristics of each relationship need to be examined. I maintain that the parameters of Corregedore’s duty to Per-reira is established by his officially delineated responsibility, inter alia, for facilitating the receipt by military veterans of such mental health counseling and therapeutic sеrvices as they might need. See infra at section II.B. of this opinion. On the one hand, a spousal abuse counselor, chemical dependency counselor, or marriage counselor could conceivably be subject to a similar duty to take reasonable action to seek to prevent the suicide of a counselee who has clearly and unambiguously informed the counselor of his or her suicidal intent. But that duty would have to be grounded, as in the present case, in the particular job description of the counselor and the specific professional or official obligations and responsibilities that he or she has formally undertaken. A priest, rabbi, minister, native Hawaiian kahuna, or telephone hotline counselor would probably not be subject to such a duty because their respective job descriptions and professional or official obligations and responsibilities—formally undertaken—would not likely establish the requisite “special relationship” with their parishioner, counselee, or correspondent.
2. Pastoral and similar “counseling” relationships are readily distinguishable from that between Corregedore and Perreira.
In Natty, the California Supreme Court declined to recognize a duty on the part of a pastoral counselor to prevent the foreseeable suicide of a parishioner/counselee.
[W]e are urged that mere knowledge on the part of the defendants that [the decedent] may have been suicidal at various stages in his life should give rise to a duty to refer. Imposition of a duty to refer ... 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 eoun-*182 selors may conclude that referring a client to a psychiatrist is prudent and necessary, our past decisions teach that it is inappropriate to imposе a duty to refer—which may stifle all gratuitous or religious counseling—based on foreseeability alone. 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.
Id. at 108,
Unlike the clergy-parishioner relationship at issue in Natty, Corregedore’s very job description, as a Veterans Services Counsel- or, required the capacity to recognize “emotional or mental problems” and to effectuate appropriate referrals to mental health professionals as a necessary vocational qualification. In any event, Corregedore’s duty to make such referrals in the first instance is undisputed in the present case;
I do not dispute the Natty court’s observation that “nontherapist counselors are not professional medical experts on suicide.” See supra note 5; see also majority opinion at - ,
3. The standard of care to which Veterans Services Counselors, such as Corregedore, are subject does not implicate the same confidentiality constraints as that applicable to licensed mental health professionals.
The majority fails, in its analysis of what it perceives to be the relevant case law of other jurisdictions, to recognize and account for critical differences between Corregedore’s status as a Veterans Services Counselor and that of mental health professionals licensed by the state. In this connection, and by way of example, the majority notes that,
despite [the fact] that the California Supreme Court ha[d] already held that a psychotherapist had a duty to warn others when a patient under the psychotherapist’s care was likely to cause personal injury to a third party, [see Tarasoff ], a California appellate court subsequently limited Tarasoff, holding that courts should not extend Tarasojf to require psychiatrists to disclose the confidences of their patients when the patients are contemplating suicide. Bellah v. Greenson,81 Cal.App.3d 614 ,146 Cal.Rptr. 535 , 539-40 [ (1978) ].... [T]he Bellah court ... explained] that, while a cause of action might exist for traditional, professional malpractice when a psychiatrist’s treatment of a suicidal patient falls below the standard of care for the profession, the plaintiffs were wrong in asserting that Ta-rasojf had created a broad duty on the part of psychiatrists to breach the confidence of their doctor-patient relationships by warning others of the likelihood of a patient’s suicidal disposition.]
The imposition of a duty upon a psychiatrist to disclose to others vague or even specific manifestations of suicidal tendencies on the part of the patient who is being treated in an out-patient setting could well inhibit psychiatric treatment. ... Intimate privacy is a virtual necessity for successful treatment. Were it not for the assurance of confidentiality in the psychotherapist-patient relationship, many in need of treatment would be reluctant to seek help. Even those who do seek help under such circumstances may be deterred from fully disclosing their problems. An element usually assumed essential is the patient’s trust that matters disclosed in therapy will be held in strict confidence. (See Fleming and Maximov, The Patient of His Victim: The Therapist’s Dilemma (1974) 62 Cal.L.Rev. 1025, 1041.)
Bellah,
Of course, licensed mental health professionals, such as psychiatrists, are bound by ethical codes that require strict maintenance of their patients’ confidences,
It is precisely because Corregedore is not a licensed mental health professional that he is not subject to the physician’s or psychotherapist’s code of conduct. Accordingly, the majority’s invocation of case authority addressing the potential civil liability of “health care workers ... [for] disclosing confidential information to third parties,” majority opinion at 167-168,
Another significant distinction between the relationship of a psychiatrist/mental health professional to his or her patient, on the one hand, and of a Veterans Services Counselor to his or her client, on the other, is that a patient can sue the psychiatrist/mental health professional for malpractice, whereas such a claim for relief is not available to the client of a Veterans Services Counselor. Thus, in Bellah, the court noted that the plaintiffs’
complaint alleged the existence of a psychiatrist-patient relationship between [the] defendant and [the decedent], knowledge on the part of the defendant that [the decedent] was likely to attempt suicide, and a failure by [the] 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. The nature of the precautionary steps which could or should have been taken by [the] defendant presents a purely factual question to be resolved at a trial on the merits, at which time both sides would be afforded an opportunity to produce expert medical testimony on the subject. From the face of [the] plaintiffs’ complaint, we are unable to determine whether [the] defendant did or did not take preventive steps which were consonant with good medical practice in the community.
No malpractice action is available to the plaintiffs in the present ease. Veterans Services Counselors are not currently held to a professional standard of care as psychiatrists and other mental health professionals are. The majority seems to be unwilling to acknowledge that Corregedore owed any duty to Perreira by virtue of the character of their professional relationship. Accordingly, although Corregedore was unquestionably a “link” in Perreira’s therapeutic “chain,” the majority would completely insulate him from any liability arising out of his alleged failure to discharge his vocational obligation to Per-reira. This makes no sense to me.
4. Of the relationships described in the case law cited by the majority, the relationship between Corregedore and Perreira most closely resembles those at issue in the Eisel And Brooks decisions.
I believe that, of the relationships described in the case law cited by the majority, the relationship between Corregedore and Perreira most closely resembles that at issue in Eisel v. Board of Education,
the relationship of school counselor and pupil is not devoid of therapeutic overtones. The “Counselor Job Description” ... lists the first two “[p]riorities of the counseling profession” to be:
“1. Counseling with individuals and groups concerning school adjustment, physical and emotional development, educational planning, and career awareness ....
“2. Identifying students with significant problems and taking steps to provide help for these students.”
Id. at 452. Moreover, in “distinguishing] the [matter before the court] from those cases finding an absence of duty ... in which the custodial relationship between the suicide victim and the defendant was other than that of hospital and patient or jailer and prisoner,” the Eisel court noted that
[t]he negligence relied on is a failure to communicate to the parent the information allegedly possessed by the defendants concerning the child’s contemplated suicide, not a failure by the school authorities physically to prevent the suicide by exercising custody and control over [the decedent victim]. The theory of [the plaintiffs]*185 case is that he could have exercised his custody and control, as parent, over [the decedent], had he been warned, and inferentially, that there was nothing known to the counselors about [the plaintiffs] relationship with [his daughter] that would make such a warning unreasonable.
Id. at 451 (emphasis added).
Although the majority maintains that the relationship between Corregedore and Per-reira more closely resembles that between a psychiatrist and a patient or between a pastoral counselor and a counselee, I believe that the relationship is much more analogous to that between the high school counselor and student in Eisel. In Eisel and the present case, the counselors, by virtue of their job descriptions, were officially charged by their employers—the government—with quite specific remedial responsibilities, including ascertaining their clients’ problems and needs and taking steps to address them.
The majority correctly notes that the Maryland Court of Appeals’ opinion in Eisel was influenced by the enactment of that state’s Youth Suicide Prevention School Programs Act and by the fact that the decedent was an adolescent. But these were only two among many factors considered. The Eisel court clearly stated that
Foreseeability is the most important variable in the duty calculus. ... Here, [the decedent’s] suicide was foreseeable because the defendants allegedly had direct evidence of [the decedent’s] intent to commit suicide. That notice to the defendants distinguishes this case from Bogust, [supra,] where the counselor had no notice of contemplated suicide.
The degree of certainty that ... [the decedent] suffered the harm foreseen is one hundred percent.
Id. at 452-53 (emphasis added) (citations omitted). The Eisel court also considered the “[b]urden on the defendant,” observing that
It may be that the risk of any particular suicide is remote if statistically quantified in relation to all of the reports of suicidal talk that are received by school counselors. We do not know. But the consequence of the risk is so great that even a relatively remote possibility of a suicide may be enough to establish [a] duty. We pointed out in Jacques v. First Nat’l Bank,307 Md. 527 , 537,515 A.2d 756 , 761 (1986), that “[a]s the magnitude of risk increases, the requirement of privity is relaxed—thus justifying the imposition of a duty in favor of a large class of persons where the risk is of death or personal injury.” ...
Moreover, when the risk of death to a child is balanced against the burden sought to be imposed on the counselors, the scales tip overwhelmingly in favor of [a] duty. Certainly the physical component of the burden on counselors was slight. Eisel claims only that a telephone call, communicating information known to the counselors, would have discharged that duty here. We agree.
Id. at 455 (some brackets in original and some added).
The duty that the Eisel court imposed on the school counselor is simultaneously more and less exacting than I would impose on Corregedore, as a Veterans Services Counselor, in the present case. I am not advocating the imposition of a duty where there is merely a “relatively remote possibility of a suicide.” Only where there is a clear and unambiguous expression of a suicidal intent and a stated plan for consummating it would I impose a duty on a Veterans Services Counselor to take definitive action. On the other hand, I believe that whether “only ... a telephone call[ ] communicating information known to the counselor[] would have discharged” Corregedore’s duty in the present case constitutes a genuine issue of material fact—going to the reasonableness, i.e., sufficiency, of Corregedore’s action—for the trier of fact to decide. Although the standard of care that I would impose may not be completely coextensive with that articulated in Eisel, the analysis of the Eisel court remains sound and compelling.
Moreover, the fact that the school counsel- or in Eisel boasted an advanced degree in guidance and counseling and had some, albeit limited, training in suicide prevention, Eisel,
In Brooks, the parents of a child who committed suicide filed a wrongful death action against their son’s teacher and the school district.
[ujnder the District’s rationale, [the teacher] would have a duty to prevent Jeffs suicide if it occurred on the school grounds. Conversely, if he had stepped one foot off the school grounds and committed suicide, no duty would arise. We do not believe this arbitrary line can be drawn. For the purposes of this motion[,] we must assume that the negligence occurred, if at all, while Jeff was attending school and [the teacher] failed to seek help. The result of the alleged negligence is the only element that did not take place on the school grounds....
Accordingly, we find that there is a duty which arises between a teacher or school district and a student. This duty has previously been recognized by this Court as simply a duty to exercise reasonable care in supervising students while they are attending school.
Id. at 79.
The majority asserts that Eisel and Brooks are inapposite to the present matter because Perreira “had the freedom as an adult to enter or leave the Veterans Administration Clinic and the Office of Veterans’ Services [and to] aecept[] or refus[e] medical treatment as he pleasedf.]” Majority opinion at 171,
As a final matter, I note that the majority quotes Eisel, which itself cited Farwell v. Un,
III. CONCLUSION
For the foregoing reasons, and on the record before us, I would hold that Corregedore owed his client, Perreira, a duty to employ reasonable means to seek to prevent the latter’s intended suicide, of which Correge-dore was on actual notice. I would hold further that it is for the trier of fact to determine whether Corregedore discharged that duty,
. In this connection, I submit that the majority's holding in this case is utterly irreconcilable with the key holding in this court’s recent decision in Touchette v. Ganal,
On appeal, we vacated the circuit court's order and remanded the matter for further proceedings, id. at 294, 304,
Sections 314A through 325 address special applications of the general principle set forth in section 314. Comment a to section 314 provides:
The general rule stated in this Section should be read together with other sections which follow. Special relations may exist between the actor and the other, as stated in § 314A, which impose upon the actor the duty to take affirmative precautions for the aid or protection of the other.... The actor’s prior conduct, whether tortious or innocent, may have created a situation of peril to the other, as a result of which the actor is under a duty to act to prevent harm.... The actor may have committed himself [or herself] to the performance of an undertaking, gratuitously or under contract, and so may have assumed a duty of reasonable care for the protection of the other, or even a third person....
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Section 314A contains a caveat stating that "[t]he Institute expresses no opinion as to whether there may not be other relations which impose a similar dutyL]” and this court has also recognized that the fist of relationships delineated in section 314A is not exclusive or exhaustive. Moreover, comment (b) to section 314A provides:
... The duties stated in this Section arise out of special relations between the parties, which create a special responsibility, and take the case out of the general rule. The relations listed are not intended to be exclusive, and are not necessarily the only ones in which a duly of affirmative action for the aid or protection of another may be found.... The law appears ... to be working slowly toward a recognition of the duty to aid or protect in any relation of dependence....
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We ... expressly recognize the duly set out in Restatement (Second) of Torts §§ 302, 302A and 302B. We therefore hold that: (1) a negligent act or omission may be one which involves an unreasonable risk of harm to another through either (a) the continuous operation of a force started or continued by the act or omission, or (b) the foreseeable action of the other, a third person, an animal or a force of nature; (2) an act or omission may also be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through the negligent or reckless conduct of the other or a third person; and (3J an act or an omission also may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through the conduct of the other or a third person which is intended to cause harm, even though such conduct is criminal.
Id. at 298-99, 303,
° The majority's retreat from this court’s expansive “duly" analysis in Touchette is baffling, unjustified, and cruel to the plaintiffs in this case, and its attempt to argue the irrelevance of Tou-chette to the present appeal, see majority opinion at 160-162,
The majority claims that "our holding in Tou-chette was premised” on "the common law distinction between ‘nonfeasance’ and ‘misfeasance.’ ” Majority opinion at 162,
. Hawaii case law indicates that the undеrlying rationale for the custody exception is closely linked to foreseeability. The majority quotes Seibel v. City and County of Honolulu,
[t]he basis for imposing a duty on the parent, master or institutional custodian to control the*177 conduct of a child, servant or ward is that, because of the relationship between the parties, the parent, master or institutional custodian is able or should be able to foresee the risk created by the other and can or should be able to take precautions against that risk.
Majority opinion at 9 (majority’s emphasis omitted and additional emphasis added).
. The majority consistently refers to a “duty to prevent suicide," as if that were the duty that the plaintiffs are seeking to impose upon the defendants in this case. In this respect, the majority is setting up a "straw person.” Actually, the plaintiffs assert only that Corregedore owed Ferreira a duty to take reasonable action to prevent his suicide.
. I do not suggest that Corregedore’s duty is statutorily imposed. In this regard, I express no opinion regarding the majority's analysis appearing in section III.B. of its opinion. .
. The Natty court further stated that "[g]enerally, 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.”
. Perreira was under the care of a psychiatrist and a social worker at a Veterans Administration clinic on Kaua’i. See majority opinion at 156,
. The majority correctly notes, at 170-171,
. The parameters of the duty would necessarily be shaped by the factual record adduced at trial. In this regard, the task of the trier of fact would be to determine what constitutes "reasonable means" in light of, inter alia, Corregedore’s job description, background, and training.