Arizona Court of Appeals Division One holds that a psychiatric evaluation service company does not owe a common law or statutory duty to warn and protect where there is no evidence of abuse and neglect.

A mother drowned her twin boys and was found guilty except insane of first-degree murder. The father filed a wrongful death lawsuit against various defendants, including a psychiatric service company that had evaluated the mother. The father alleged in his lawsuit that the service company had failed to report the mother’s neglect and abuse of the twins, and that the company had a duty to warn and protect the children.

The superior court granted summary judgment in favor of the psychiatric service company, holding that the company did not owe a duty under either the common law or A.R.S. § 13-3620.

The Court of Appeals affirmed.

To establish an Arizona common law negligence claim, a plaintiff must prove, among other things, the existence of a duty. In Hamman v. County of Maricopa, 161 Ariz. 58 (1989), the Arizona Supreme Court relied on foreseeability to recognize a common law duty of psychiatrists to warn or protect: “When a psychiatrist determines, or under applicable professional standards reasonably should have determined, that a patient poses a serious danger of violence to others, the psychiatrist has a duty to exercise reasonable care to protect the foreseeable victim of that danger.”  Since then, however, the Supreme Court held “that foreseeability is not a factor to be considered by courts when making determinations of duty, and we reject any contrary suggestion in prior opinions.”  Gipson v. Kasey, 214 Ariz. 141 (2007). Although the court of appeals has no authority to overrule Hamman, the court questioned the extent of its viability in light of Gipson and other subsequent cases. In the meantime, Hamman cannot be used to expand the duty to warn and protect others based solely on foreseeability.

Here, the court of appeals held that the service company did not owe a duty under A.R.S. § 13-3620 because it had no reason to believe that the mother was abusing or neglecting the twins. It then held that it did not owe a common law duty, either, because the argument in favor of a common law duty relied on foreseeability

Judge Bailey authored the opinion of the Court; Judges Perkins and Cruz concurred.

Posted by: John Bullock