*1 view, not my the criminal law should own testimony from the State’s Other physician for a death punish used to that the risk which be demonstrated witnesses makes a decision that turns unjustifiable when he or she not an took was Dr. Warden simply consequence, to have a fatal expert medi- out example, the State’s risk. For acting in physician, some other although the testified that cal witnesses circumstances, would have more favorable do in a baby “would better” mother differently. done of the hospital, Dr. evaluation Warden’s signs indicated that were infant’s vital sta- testified that
“acceptable.” Dr. Chan die from
tistically only percent of babies syndrome. respiratory distress
untreated guess message “I is it’s
He also stated: baby rare to lose a at this
very unusual and weight hya-
gestation and this birth Furthermore, Dr. line disease.” membrane ROLLINS, personal representa Melinda family that the Warden had been informed Schopf, and of the Estate of Marcel tive expense to minimize the of the birth wished Royal Company, Insurance Plaintiffs go to a be- and did not want Appellants, expense. cause support Finally, the evidence does not that Dr. Warden’s actions
the conclusion PETERSEN, Brown, Dale R. Michael Jon death. He left the child caused the child’s Brown, A. State Susette grandmother, who was in the care of Appel Hospital, Defendants and State him if the child’s condition instructed to call lees. experts The State’s testified
worsened. No. 880280. recog- layperson would be unable to changes Supreme Court of Utah. nize the condition subtle but, progressed child as the disease June hours, manifestly early morning obvious a.m., child change occurred. At 8 breathing. grandmother re-
stopped The the child and then called
suscitated did not disclose her
doctor’s office but emergen- an
name or that the situation was Although Dr. Warden was not at his
cy. time, at the he was available
office responded if the nature of the have
could
emergency communicated to his had been then called a grandmother
office. child,
friend and discussed birth stopped that it had she did not mention
but Later, clergy- her
breathing. she called
man, again him of the but did advise a.m., clergyman
emergency. At 10:30 home, doctor arrived at the
and another Any kind hospitalized.
and the child was grand- reasonably prompt action the child’s life. may
mother well have saved intervening unreasonable of her
Because office of the to inform Dr. Warden’s
failure legal was not the
emergency, Dr. Warden child’s death.
cause of the *2 Souvall, McRae, Harry H.
Robert M.
Vernal, Melinda Rollins.
Sorenson,
Dam, Stephen J.
R. Paul Van
City, for
state.
Lake
Salt
Jeffs, Provo, for the Browns.
Robert L.
AWOL,”
ZIMMERMAN,
“potential
and the staff takes
Justice:
patient.
measures to locate the
(the estate)
of Marcel
The Estate
Patients at the
also have certain
wrongful death action
brought this
*3
assigned
duties. Petersen’s
“industrial”
Utah,
Hospital
the Utah
of
State
the State
duty
trays
industrial
was to return lunch
(the
Dale R. and Susette A.
hospital),
to the kitchen on another
used
ward
Brown,
The
Michael Petersen.
Jon
requested
granted per-
floor. He
and was
summary judgment in
granted
trial court
sign-out requirement
mission to waive the
hospital and the
We
favor of the
Browns.
regularly
he left the
for this
when
ward
affirm.
specific purpose.
granting sum-
appeal
On
from an order
1, 1986,
morning
the
of November
On
infer-
mary judgment, we view facts and
requests
get
refused several
Petersen
light
ences in the
most favorable to the
Thus,
out of
and take his medication.
bed
See,
party.
losing
e.g., Beach v. Universi-
comply,
privileges
the time he did
his
413,
(Utah 1986).
ty
726 P.2d
of
lunch,
day.
had been revoked for the
After
accordingly.
We recite the facts
State v.
p.m.,
and 12:30
Petersen left
between 12:15
116,
(Utah 1989).
Verde, 770 P.2d
trays in
the ward to return lunch
accord-
Michael Petersen was admitted to
Jon
assignment.
his industrial
He
ance with
1982, having
hospital May
in
been
sign
hospital
did not
out. He then left the
previous
occasions. His
admitted
four
and,
grounds entirely
finding the Browns’
disorder,
diagnosis was schizo-affective
engine
unattended automobile with its
run-
hospital
has since
his commitment to
street,
ning
nearby
on a
residential
stole
continuously by
been renewed
the fourth
away.
the car and drove
Some minutes
Petersen’s
in
district court.
admission
(and approximately
later
an hour after
resulted from an incident in which he
leaving
hospital),
attempted
as he
hostage
his roommate.
held
and stabbed
15,
police
evade
on Interstate
Petersen lost
history
hospital
His
at the
shows that he is
car,
path
control of the
crossed into the
quick
anger
verbally
and is sometimes
traffic,
oncoming
and collided head-on with
abusive,
stay angry,
but that he does not
vehicle, killing
Schopf.
another
Marcel
grudges,
physically aggres-
bear
become
Schopf’s
brought
estate
suit
hospital
sive. His
record includes two es- Browns, alleging
negligently
that
capes:
September
an AWOL
failed to secure their
and that
automobile
away”
halfway
and a “walk
from a
house Schopf’s
proximately
death
resulted. The
March
alleged
hospital
estate also
that the
assigned
hospi- negligent
failing
comply
Petersen had been
with its es-
policies,
allowing
a locked
Prior to
Petersen to
tal’s adult unit
ward.
tablished
away
facility,
Petersen’s treatment walk
from the
and in not
November
given
adequately instituting
pro-
him
own
team had
a blue “self-escort”
AWOL
passes
him.
pass. Holders of blue
at the
cedures to recover
The trial court
privilege
leaving
granted
summary judgment
the ward
for
tal have the
period
hospital
ground
supervision
without
for a
not to Browns and the
minutes, during
Schopf.
an hour and fifteen
neither owed a
of care to
exceed
snacks,
they may buy
pay
granted summary judgment
use
court also
hospital
phones,
grounds,
walk the
etc. When the
favor of the
on the alternative
pass
ground
governmental immunity.
ap-
holder of a blue
leaves the locked
On
ward,
peal,
argues
summary
required procedure
judg-
is that
the estate
out,” i.e.,
“sign
improperly granted
ment was
patient
inform
ward
leaves,
hospital.
argues
patient
of the time the
Browns and the
It
attendant
destination,
Code,
expected
patient’s
and a
section 41-6-105 of
which re-
clothing.
description
patient’s
quires
A
owners of cars to secure their ve-
unattended,
returned
hicles when left
patient who has not
within five
creates
Schopf. The
expected
time is considered owed
the Browns to
estate
minutes
Restatement,
Ferree,
ter owed
contends that under the
no
also
large.
as well. member
owed
argue
P.2d at 153. Plaintiffs here
appropriate only
Summary judgment is
factually distinguishable. They
Ferree
genuine
there exists no
issue of ma-
when
urge that we follow the Restatement of
moving party
fact
entitled
terial
determining
Torts’
criteria
judgment
as matter of law. Utah
is owed
a custodian who
see,
56(c);
e.g.,
Capital
R.Civ.P.
Landes v.
causing injury.
has taken control of the one
Bank,
City
criteria, plaintiffs argue,
these
1990); Utah
Coalition
Senior Cit-
State
should be found to owe a
*4
to
Co.,
Light
v.
P.2d
izens Utah Power &
776
the decedent.
(Utah
632,
1989).
634
accord
We
no defer-
law,
ence to the trial court’s conclusions of
acknowledge
general
We
appli
reviewing
Landes,
them
correctness.
cability in
the “special
Utah of
relation”
1129;
Borthick,
P.2d
795
Madsen v.
769 analysis
through
314
described
sections
245,
(Utah 1988).
P.2d
247
gen
320
Restatement of Torts. See
(Second)
erally Restatement
of Torts
We first consider the estate’s
that
claim
(1965). A
314-320
brief review of that
§§
finding
trial
erred
that no valid
concept
understanding
will assist
our
negligence
cause of action for
had been
disposition
plaintiffs’
claim under section
alleged against
it
319. Section 315 sets out the
no duty
owed the decedent
of care. As we
principle
that one has no
to control
University
stated
v.
726
Beach
persons.
the conduct of third
The Restate
(Utah 1986),
413
P.2d
“One essential ele-
gen
then
to
exceptions
ment
lists two
negligence
ment of
is a
a
action
First,
special
if “a
eral rule.
relation exists
plaintiff by
care owed to the
reasonable
person,”
the actor and the third
between
showing
Absent a
of a
defendant....
a duty
then the actor has
to “control the
duty,
plaintiff]
cannot
recover.”
[the
(Sec
person’s
third
conduct.” Restatement
Beach,
(citing Hughes
requires a consideration of the of corrections careful public. expose parties society members of the It would consequences for the and wrong realistically potentially every in- large. If the the state at necessary programs of if funda- flows from the capable performance, or it is paroling prisoners. nature of the rehabilitation mentally at odds with the prison populations, the increases relationship, we should be loath Given parties’ could be to burden correc- relationship “special” and to the effect well to term that legitimate tions officials and chill rehabil- resulting “duty,” for it is mean- impose programs. probation Parole and speak “special relation- itative ingless to programs subject tragic occasional in the are ships” and “duties” abstract. impre- and the only failures of human nature terms are labels which These predicting violent situations cision associated with legal system applies to defined conduct, prac- human but are also rights certain and obli- to indicate that them; tically indispensable. public interest they are “an gations flow imposing liability gener- not be consistent with the treatment. would served See 62A-12-234(10)(d), and the for ally on corrections officials state Utah Code Ann. §§ -235(2), attends parole uncertain success that prisoners -241 Yet both probation programs. patients almost defini- tionally dangerous someone. See Ferree v. 62A-12-209(2)(d), Ann. Code 1989). §§ -232(l)(a) (b), -234(10)(b) (1989 Supp. & & that if offi- We concluded Ferree 1990).2 special To find the claimed relation cials had reason to detainee believe consequent duty incon- would be danger particular to a presented performance sistent func- with the relation, duty, hence person, a legis- tions assigned to the custodian general- might apart from a be established lature. If these custodians owed a public large. at ized every public member However, showing we found that no such control, done their Therefore, made in had been Ferree. potential liability broad could effective- granting affirmed the trial court decision cripple ly programs. these In such set- summary judgment. corrections center that, tings, words of we conclude id. at 152-53. Beach, duty [proposed] realistically “the case, Returning incapable performance ... it [and] language of contend that under the fundamentally at odds the notions Restatement, 319 of the we should find a Beach, parties’ relationship_” relation to exist between Therefore, P.2d at we adhere to Fer- and, therefore, large tal and the *6 reject imposition duty. ree and of this impose duty hospital to the the large allegedly dangerous public at from approach plaintiffs The advocate under in custody. Because rec- have the anomalous re- 319 would ognize that the claim here is similar to that making running sult of custodians transi- they request in rejected that we programs tional virtual insurers of their distinguish reject either Ferree or it as services, leaving public while without inconsistent with section 319. We decline recovery any prospect of from the custodi- accept essentially this for invitation patients or re- an once the inmates are pragmatic did not find a same reasons we custody. Yet of their leased from some consequent relation and a in patients and almost former inmates will and Ferree. Beach danger- certainly again or remain become place It us as unsound to these ous. strikes pragmatic
We elaborated on vitality risk They programs transitional apply considerations Ferree. solely finding interest of a solvent always here. are almost equally Prisoners responsible any harm caused point, at some and those defendant released commit custody custody itself has hospitals by treated for even one in to state are ted relatively danger- parole The mini little correlation to one’s prison’s release. tual designed decisions and transi- security programs are ousness. All custodial mum risks to opportunity programs tional critical inmate the best give the public, successfully society a member of some members become acceptance legis- risk is hospital of that Analogously, again. may people who lative decision charged placing those dangerous up not to be be locked minimum of secure confinement level (b) 62A-12-232(l)(a) & requires dangerousness § Utah Ann. to self or Code 2. Section 209 mentally per- (1989). involuntary Finally, ill commit- others before commitment before guilty. order, showing have found not by sons who been there ment must be 62A-12-209(2)(d) (Supp.1990). § Code Ann. convincing clear evidence that requires showing dangerous- poses danger self or son to detained be may temporarily one committed ness before be 62A-12-234(10)(b) § Code Ann. others. Utah "responsible per- recommendation of on the (1989). designated "physician or examiner.” son” or a hospital individually either or as a member potential dan- simply life because of group. Viewing the facts in gerousness. of a distinct plaintiffs, light most favorable to we recognize a approach is to The sensible The is devoid find that he was not. record that does part of the custodian that, any to indicate as to the evidence operation of transitional discourage any way hospital, Schopf was distin- requires the custodian to programs, but guishable, himself or as a either member custody one in use care when the injurable. any group may distinct the others apart sets him- or herself from Rather, Schopf simply a was member dangerousness to an identifia- terms public, distinguishable no more persons. point, At that person or ble any person. other As to than special relation can be said to arise because hospital, Petersen had not set himself custody sufficiently distin- the one dangerousness Schopf apart in terms of guished him- or herself from group of which personally or to distinct population. This is what we held detained Therefore, a member. the hos- in Ferree. Schopf. pital owed no bring harmony into To section 319 approach, must read with our Ferree we argues also that it is following into section 319 the limitation. immunity entitled to under the Governmen any duty imposed oth Before Immunity Act. Utah Code Ann. tal bodily harm caused one under ers argue -38 Plaintiffs 63-30-1 to state, “others” to whom control of the immunity is waived under section 63- “likely” in favor bodily harm is of 30-10(1). Ann. See Utah Code reasonably arises must be whom 63-30-10(l)(a) not, (j)& We need either individ identifiable the custodian however, argument address group. ually or as members of a distinct hospi already have determined that the group Generally, for a to be Schopf.3 tal owed no identifiable, bodily reasonably the trial court We next consider whether type caused will be of a that the custodian *7 correctly found that there was no cause of knew or should have known the detainee against action the Browns. The estate if And likely to cause not controlled. owed a claimed that the Browns “likely” the is emphasize here we term decedent not to leave their car unattended cause, “might” general cause. to not See it, they keys with the breached that ly Knight, 919-20 State consequence duty, and that as a (discussion (Utah 1987) degrees of relative base their claim of a was killed. Plaintiffs probability). When section 319 is read of duty on the fact that section 41-6-105 of duty imposed qualification, with this the imposes operators the a of Code upon the custodian is narrowed to workable engine, motor vehicles to turn off the lock dimensions. ignition, key they and remove the the when apply now this standard to the We leave the car unattended. Utah Code See present case as the facts (1988). Ann. 41-6-105 § hospital. question whether becomes reasonably provides: the Section 41-6-105 Schopf was identifiable Therefore, case, any Contrary dis- as in tort to assertions in Justice Durham's case, legislature's abrogation proper analysis senting opinion, mode of is to first the of the legal theory upon sovereign immunity a does not lead to consider whether there is absolute case, (in brought public duty doctrine has which suit can be this whether the conclusion that the Legislative recognition Schopf) abrogated. owed a to before con- of the also been independent questions previously sidering separate right one who has the a to recover from liability acts of whether the is immune. See Ferree been immune from tortious (Utah 1989); logically P.2d Beach v. be read as an elimination of the 784 149 cannot requirement (Utah 1986). University 726 that before one can recover dam- P.2d 413 of another, Arguelles, ages proven. a must be But Doe v. tort cf. 1985) (considering governmental immunity proof a owed to the There must still be of first). duty. question claiming injury and a breach of one legislative a driving charge a act accordance with stan- No or in to person permit it to stand motor vehicle shall dard: stopping first en- without unattended adopt as the standard The court will removing gine, locking ignition and [person] a of conduct of reasonable placing the key, transmission legislative requirements a enactment or “re- “park” gears or the in “low” regulation an administrative whose or shift, has a manual verse” if vehicle exclusively purpose is found to be thereon; effectively setting the or brakes (a) protect the interests of state and, standing upon any perceptible such, it as or or subdivision turning grade, the front wheels to (b) enjoy- to secure individuals the highway. curb side of the or rights privileges to which ment of or (1988). Code Ann. 41-6-105 Viola-
Utah
§
only
as
entitled
members
a
B
provision
class misde-
tion
public, or
Code Ann.
41-6-12
meanor. See Utah
(c)
impose upon
the actor the
Plaintiffs reason that
section
formance of a
which the state or
service
(Second) Torts,
Restatement
give
any subdivision of it undertakes
legislative
a
es-
declaration
public,
or
a dece-
tablishes the standard
care owed
(d)
a class of
other
violating
The Browns admit to
sec-
dent.
invaded,
whose interests are
than
one
Therefore,
question
tion 41-6-105.
or
requirement of
should view the
whether we
(e)
than
another interest
establishing
41-6-105
a tort
as
invaded,
one
or
any person
might
injured
owed to
who
(f) to
harm than
protect against other
involving
in an
one who steals
accident
resulted, or
has
that which
result
statute’s violation.
car
(g)
protect against any
other haz-
cir-
286 of the Restatement
lists
than that from which the
ards
appropriate
cumstances under which it
resulted.
adopt
statutory
for a court to
standard
(Second)of Torts
that of
conduct as
a reasonable
impose
act
agree
toward
general proposition,
As a
standard:
person in accordance with that
guidelines
contained
sections
Restatement.
may adopt as
standard of
and 288 of the
The court
[person]
re-
Automatic
conduct of
reasonable
v. Lelis
Trans
Christensen
Serv., Inc.,
2d
quirements
legislative
enactment
mission
regulation
pur-
(1970)(violation
negli
whose
of statute is
an administrative
P.2d 605
*8
instances);
exclusively
part
or in
pose
Knapstad
found to be
gence
is
some
Corp.,
Home
See, e.g.,
tions of the driver.5
Wilcox v.
(1973) (penal
P.2d 682
statutes do not cre- Wunderlich,
(1928);
73 Utah
no
de-
repudiating the doctrine
Those courts
public.
general duty to the
Id.
and above a
duty on the basis
government’s
termine
*10
at 612-13.
principles
law
general common
private
indi-
recently,
opinion
applied
Most
a unanimous
in actions between
(Utah 1989),
Annotation,
Modern
tion” this case between established argues imposing The hospital Schopf. majority, how- duty hospital in this case on the would ever, of the first language overlooks the programs de- jeopardize all “transitional” part, of 315. part signed recovering to assimilate inmates there an also must determine whether community. patients into the The ma- back exception public duty doctrine be- to the ignore significant jority’s arguments two formed a relation cause (1) facts this At the time of unique to case: Simply this court with Petersen. incident, off Petersen was not the hos- duty never at the doc- looked pital premises on kind of an authorized first trine in context of the release; temporary or he was conditional not that we should section 315 does mean program designed a “transitional” language. ignore its now (2) reentry community. into the ease his hospital’s place Although the decision to gives of the Section 319 less environment Petersen in a restrictive explanation de- more detailed duties hospital grounds within the confines regard scribed in section 315 with discretionary, its may failure have been dangerous custody “persons having pro- policies and to en- follow its own written pensities”: locating escaped an force its own rules Duty Charge Per- Those discretionary nor patient neither was Dangerous Having Propensities son oriented. charge a third One who takes know whom he knows should to be committed to Petersen was bodily to others if likely mentally cause he was under court order because is under a to exercise definition, therefore, not controlled By he was a “dan- ill. to control the third reasonable Code Ann. gerous” person. doing him from prevent son to 62A-12-209(2)(d) (Supp.1990). assum- harm. care of Peter- ing legal the custodial sen, hospital acquired a Contrary majority’s reasoning, admitted to section 319. Petersen was supervising is not key inpatient. The hospital as a full-time relationship potential individual’s with order, duty, pursuant tal’s relationship victim, it is the but rather setting. 24-hour in a secured keep him custody. The extends person in setting, Petersen was secured those Within that protection safety “oth- custody individual, type of to a less strict ers,” transferred class or an who whether in his improvement behav- endangered.1 Sterling v. because foreseeably shows, analysis it results the facts this case majority limits the under section 319 1. The Again, reading "reasonably definition. identifiable” to those in the duty narrow group.” emphasis members of a "distinct majority places individuals or too much broadly, could this definition include If read those rather than the to the victim owed my "foreseeably endangered” under person "detainee.” owed the third majority’s understanding As the of section 319. *12 death, permission Schopf’s given recovery permit- ior. He was not to leave should be not, premises. He was as the ted. implies, parole security or in a minimum program
or “transitional”
as was the case
(weekend
from and Doe v. 1985) (community placement
P.2d 279 center). youth from detention Appellee, STATE of Plaintiff and allegations There and evidence in the history record that Petersen had a of es- DOUNG, Chandara Defendant violence, cape, unpredictability. His Appellant. escapes hospital record includes two from supervision, Septem- the first an AWOL No. 910072. away” ber and the second a “walk Supreme Court Utah. from halfway house March 1985. At June incident, the time of the Petersen was still potential AWOL risk. The decision to permit routinely him to leave ward out, signing
without to return dishes as regular therapeutic his program,
similar to the kind of release decisions we discretionary
have characterized as func- Doe,
tions.
tal’s failure to follow its own rules immedi-
ately after Petersen’s violation of the assignment, however,
terms of his work
are of a different nature. The has to exercise care in reasonable re-
straining, supervising, protecting pa-
tients in its Comiskey care. See
71 A.D.2d 418 N.Y.S.2d protecting This includes
patient causing harm to himself or and, minimum, requires
others at a its com-
pliance with its own established rules and
policies regarding supervision.
From the time Petersen left the ward car,
until he stole the Browns’ an estimated
thirty fifty passed. Hospi- minutes had
tal ward stated that an individual not
signed in within five back minutes of his
expected time of return is considered a
potential policies per- AWOL. Established
mitted Petersen’s brief absence from su- pervision, policies required but those same Dam, City, R. Paul Van Salt Lake supervising personnel to monitor and en- appellee. By force the rules for such absences. defi- Brown, Lynn R. City, ap- Salt Lake nition, dangerous per- Petersen remained a pellant. history escape. son with a The decision ignore his unauthorized absence from TRANSFER ORDER “policy” the ward not a was decision—it PER CURIAM: alleged an act violation of If policy. can establish at trial presents This jurisdictional matter is- negligent the act was and led to legislature sue. split juris- The Utah