NORMAN LAGOW V LIFEWAYS
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STATE OF MICHIGAN
COURT OF APPEALS
NORMAN LAGOW, as Personal Representative
of the ESTATE OF TAMERA L. WELCH,
Deceased,
UNPUBLISHED
August 17, 2001
Plaintiff-Appellant/Cross-Appellee,
v
No. 219624
Jackson Circuit Court
LC No. 96-078109-NO
SEGUE, INC., and JUDITH A. ZAREND,
Defendants-Appellees.
and
LIFEWAYS and LARRY DOUGLAS,
Defendants-Appellees/CrossAppellants.
NORMAN LAGOW, as Personal Representative
of the ESTATE OF TAMERA L. WELCH,
Deceased,
Plaintiff-Appellant/Cross-Appellee,
v
No. 220214
Jackson Circuit Court
LC No. 96-016494-CM
LIFEWAYS and LARRY DOUGLAS,
Defendants-Appellees-Cross-
Appellants,
and
SEGUE, INC., AND JUDITH A. ZAREND,
Defendants-Appellees.
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Before: Holbrook, Jr., P.J., and Hood and Griffin, JJ.
PER CURIAM.
These consolidated appeals arise out of the murder of plaintiff’s decedent, Tamara Welch.
In Docket No. 219624, plaintiff Norman Lagow, personal representative of the estate of Tamara
Welch, appeals as of right from the September 29, 1998, order of the circuit court granting
summary disposition in favor of defendants Lifeways, Segue, Inc.,1 Larry Douglas, and Judith
Zarend2 pursuant to MCR 2.116(C)(10), based on the absence of any duty owed by defendants to
the decedent in this wrongful death action. Although they prevailed in the underlying action,
defendants Lifeways and Douglas, in Docket No. 220214, cross appeal and challenge an earlier
order entered by the circuit court on May 12, 1998, denying their motion for summary disposition
pleading governmental immunity pursuant to MCL 691.1407(2). This Court consolidated the
respective appeals, and we affirm.
I
On the night of December 11, 1994, Tamara Welch (decedent) was murdered. An
individual by the name of Mark Chesley was arrested and charged with the crime, having led
police to the body. However, Chesley was subsequently determined to be incompetent to stand
trial; thus, no conviction was ever obtained for the murder. Defendants Lifeways and Segue, Inc.
(Segue), had provided mental health services to both decedent and Chesley before decedent’s
death.
Decedent, who suffered from schizophrenia, was placed in defendant Segue’s care for
several months in 1992 pursuant to an involuntary treatment order issued by the Jackson Probate
Court. After the involuntary treatment order expired in November 1993, decedent requested to
live independently in her own apartment, outside of Segue’s adult foster care system. As her
mental condition improved, her psychiatrist approved the move to independent living in January
1994. The evidence indicates that when decedent moved into her own apartment in 1994 she
was mentally stable and functioning very well. Her father, plaintiff herein, admitted at his
deposition that during this period decedent was functioning “like a normal person,” i.e., “taking
care of herself” and “becoming very responsible.” Decedent even worked on a part-time basis
and walked to and from work in the city of Jackson without assistance from any of the
defendants. Decedent received social security benefits, which went to Segue as the payee; Segue
in turn paid her rent from the proceeds. Decedent helped to cut her costs by sharing rent with one
or more roommates. Those roommates changed over time, but included, at various times, her
1
Segue, Inc., is a nonprofit corporation that provides services to the mentally ill pursuant to a
contract with defendant Lifeways (formerly known as Jackson-Hillsdale Community Mental
Health Board at the time of the incidents giving rise to the suit), a local government agency
responsible for providing mental health services in its area.
2
At the time of the events giving rise to the present appeal, Douglas was a licensed social worker
employed by Lifeways, and Zarend was the executive director of defendant Segue, Inc.
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alleged assailant, Mark Chesley, and two boyfriends. Since their presence allegedly violated the
specific terms of her lease and jeopardized her social security payments, Segue advised decedent
in writing to have the men move out. However, she did not comply with the request.
Decedent was interviewed weekly by Segue employees during her stay in her apartment,
to monitor her continued compliance with her psychotropic medication requirements. The record
indicates that she never once mentioned any physical difficulties that she may have been having
with any of her roommates. Some of the roommates were reported to have been somewhat of a
nuisance to her because of their predilection for staying up late and watching television at all
hours; however, decedent never made any complaints about physical threats or assaults by her
roommates, including Mark Chesley.
Mark Chesley, who suffered from paranoid schizophrenia, was involuntarily committed
to the Ypsilanti Regional Psychiatric Hospital by the Jackson Probate Court for sixty days in
early 1992. The probate court later involuntarily transferred Mark Chesley into the Segue
program for a thirty-day period, ending in July of 1992. After Chesley was released by the court,
he voluntarily agreed to continue in the Segue program and continue taking his psychotropic
medications for at least a short period. In fact, his girlfriend at the time, who happened to be a
Segue employee, made taking his medication a condition precedent of Chesley’s cohabitation
with her. Over the next two-year period, Chesley continued to take his medication on a regular
basis; however, he used Segue’s outpatient psychiatric program services less and less.
Chesley was a patient of Segue until February 1994, when he asked for termination of the
contract treatment by Segue and a transfer of services to Lifeways. Lifeways agreed to have
Chesley transferred to their mental health program, and consequently, Segue had no further direct
programmatic contact with Chesley. Chesley participated in the Lifeways program without
incident for only two months. In June 1994, Chesley announced he was moving to Seattle,
Washington, with his girlfriend, who told the Lifeways psychiatrist that she would assist him in
obtaining mental health services there through the Veteran’s Administration. Chesley was
thereafter discharged from Lifeways’ program pursuant to state statute. See MCL 330.1478.
Chesley never made it to Washington. He and his girlfriend separated, and Chesley
moved in with decedent. Unbeknownst to defendants, Chesley ran out of his psychotropic
medications in mid-October, 1994. His former girlfriend called Lifeways on October 31, 1994,
to report that Chesley had run out of his medications two weeks before, and to demand additional
medications. Because he was not making threats to harm himself or others, Lifeways indicated
that Chesley would have to come to their facility voluntarily to receive assistance. He never
arrived. On December 13, 1994, decedent was found murdered in her apartment, after an
incoherent Chesley lead police to the body. Chesley was determined to be mentally incompetent
to stand trial and was involuntarily confined to a psychiatric facility.
Plaintiff initially filed two separate negligence actions, one in the Court of Claims against
defendant Lifeways, the other in Jackson Circuit Court against the remaining defendants. The
two actions were consolidated in Jackson Circuit Court by stipulation and order, removed to
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federal court, and eventually remanded to state court.3 Defendants’ initial motions for summary
disposition, based on alleged immunity provided by law, were denied by the trial court.
However, defendants filed renewed motions for summary disposition following the release of
this Court’s decision in Swan v Wedgwood Christian Youth & Family Services, Inc, 230 Mich
App 190; 583 NW2d 719 (1998). Defendants asserted that Swan, in which this Court held that
pursuant to a state statute, a mental health provider has no duty to warn a third party of the risk of
danger from one of its patients unless the patient made a direct threat against the third party with
an apparent ability to carry out the threat, was dispositive of the present case. The trial court
agreed and, holding that defendants owed no duty to decedent under the circumstances, entered
an order granting summary disposition in favor of defendants. Plaintiff now appeals.
II
On appeal, plaintiff contends that the trial court erred in granting summary disposition in
favor of defendants. Plaintiff argues that defendant Segue and its executive director, defendant
Zarend, had a special relationship with decedent, in that they were providing for her care and
therefore had a duty to protect her from foreseeable harm. Plaintiff maintains it was foreseeable
that if Chesley and decedent lived together, Chesley would harm decedent, given that Segue
knew decedent was mentally ill and had little insight into her illness, and Chesley was violent
and aggressive and was not taking his medicine. Plaintiff further asserts that defendant Lifeways,
as a public mental health agency, violated its constitutional and statutory duties to provide
appropriate treatment to mentally disabled persons by placing decedent in the least restrictive
treatment environment which was inadequate for her treatment needs, and by allowing Chesley to
be at large in the community, where he could pose a danger to her.
On appeal, this Court reviews de novo a trial court’s decision regarding a summary
disposition motion. Roberson v Occupational Health Centers of America, Inc, 220 Mich App
322, 324; 559 NW2d 86 (1996). Because it is evident that the trial court looked beyond the
pleadings in ruling on the motion, we will review the propriety of the court’s action pursuant to
MCR 2.116(C)(10), which tests the factual basis of a claim. As explained by our Supreme Court
in Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996):
In reviewing a motion for summary disposition brought under MCR
2.116(C)(10), a trial court considers affidavits, pleadings, depositions, admissions,
and documentary evidence filed in the action or submitted by the parties, MCR
2.116(G)(5), in the light most favorable to the party opposing the motion. A trial
court may grant a motion for summary disposition under MCR 2.116(C)(10) if the
affidavits or other documentary evidence show that there is no genuine issue in
respect to any material fact, and the moving party is entitled to judgment as a
matter of law. MCR 2.116(C)(10), (G)(4).
3
Plaintiff also filed a separate suit against Chesley, which was consolidated with the other
actions but ultimately voluntarily dismissed. Suits filed by plaintiff against other defendants
were likewise voluntarily dismissed.
-4-
See also Maiden v Rozwood, 461 Mich 109, 119-121; 597 NW2d 817 (1999).
Duty is an essential element of any negligence action. To establish a prima facie case of
negligence, the plaintiff must prove that: (1) the defendant owed a duty to the plaintiff; (2) the
defendant breached that duty; (3) the defendant’s breach of duty was a proximate cause of the
plaintiff’s damages; and (4) the plaintiff suffered damages. Baker v Arbor Drugs, Inc, 215 Mich
App 198, 203; 544 NW2d 727 (1996). Duty is any obligation that the defendant has to the
plaintiff to avoid negligent conduct. Id. In negligence actions, the existence of a duty is a
question of law for the court. Id.
In Swan, supra, a young man, sixteen years of age, was released from a secure residential
program for emotionally disturbed adolescents run by the defendant mental health facility, for an
unsupervised home visit. The teenager became self-destructive and when his mother’s live-in
boyfriend attempted to calm him, he killed the boyfriend. The plaintiff, as personal
representative of the estate of the decedent, brought an action against the mental health facility,
alleging that it committed a breach of its duty to use reasonable care in the admission, treatment,
and supervision of the teenager, by sending him home on an unsupervised visit, failing to ensure
that the youth had an adequate amount of his prescription medication and would take it during
the visit, and failing to take appropriate measures in response to a phone call from the teenager’s
mother during the visit regarding his behavior. The plaintiff claimed that the killing of the
decedent was proximately caused by the defendant’s negligence. The trial court granted
summary disposition in favor of the defendant, finding that although the defendant owed a duty
of reasonable care to the disturbed teenager, it owed no duty to unknown third parties such as the
decedent. This Court affirmed, finding that MCL 330.1946 narrowly limits the duty a mental
health professional owes to third parties. MCL 330.1946, a “duty to warn” statute,4 provides in
pertinent part:
4
The Swan Court, supra at 195-196, explained the rationale underlying the statute as follows:
In the landmark case on a psychiatrist’s duty to third persons, Tarasoff v
Regents of Univ of California, 17 Cal 3d 425; 131 Cal Rptr 14; 551 P2d 334
(1976), the California Supreme Court held that a psychiatrist owes a duty to use
reasonable care to protect persons endangered by his patient. The holding in
Tarasoff was based upon the common-law rule of negligence that a person owes a
duty to protect individuals from third persons when there is a special relationship
with either the dangerous person or the potential victim.
In Davis v Lhim, 124 Mich App 291, 301; 335 NW2d 481 (1983), this
Court adopted the Tarasoff reasoning and held that a psychiatrist owes a duty of
reasonable care to a person who is foreseeably endangered by his patient.
However, the Supreme Court reversed this decision on other grounds in Canon v
Thumudo, 430 Mich 326; 422 NW2d 688 (1988), and the Court found that on the
basis of its holding it did not need to decide whether a duty to warn should be
imposed upon mental health professionals. In 1989, the Michigan Legislature
(continued…)
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(1) If a patient communicates to a mental health professional who is
treating the patient a threat of physical violence against a reasonably identifiable
third person and the recipient has the apparent intent and ability to carry out that
threat in the foreseeable future, the mental health professional has a duty to take
action as prescribed in subsection (2). Except as provided in this section, a
mental health professional does not have a duty to warn a third person of a threat
as described in this subsection or to protect the third person.
(2) A mental health professional has discharged the duty created under
subsection (1) if the mental health professional, subsequent to the threat, does 1 or
more of the following in a timely manner:
(a) Hospitalizes the patient or initiates proceedings to hospitalize the
patient under chapter 4 or 4a.
(b) Makes a reasonable attempt to communicate the threat to the third
person and communicates the threat to the local police department or county
sheriff for the area where the third person resides or for the area where the patient
resides, or to the state police.
***
(5) This section does not affect a duty a mental health professional may
have under any other section of law. [Emphasis added.]
The Swan Court rejected the plaintiff’s argument that the statute did not apply to the facts before
it and held that the statute served as a bar to the plaintiff’s suit:
According to plaintiff, the statute by its own terms applies only in those
situations where a psychiatric patient has communicated a threat to a mental
health professional against a reasonably identifiable third person. We disagree.
MCL 330.1946; MSA 14.800(946) limits the duty a mental health professional
owes to third persons such as plaintiff’s decedent. Under the statute, the only duty
owed is a duty to warn in those situations where a patient communicates a threat
and the object of the threat is reasonably identifiable. . . . In the present case,
plaintiff concedes that LaPalm had communicated no threat against the decedent
or any other third party. The decedent had participated in two visits with LaPalm
in the preceding month that had gone well. Moreover, there is no evidence that
LaPalm ever threatened or assaulted the decedent before the assault on August 23,
1992. Therefore, defendant owed no duty to warn or protect the decedent under
the terms of the statute.
(…continued)
sought to codify the holding set forth in Tarasoff in a “duty to warn” statute, MCL
330.1946; MSA 14.800(946) . . .
-6-
Plaintiff further argues that the statute does not apply in the present case
because plaintiff’s claim is not based upon a failure to warn but upon defendant’s
negligence in treating LaPalm. . . . However, plaintiff’s argument fails because to
the extent that he alleges a breach of duties on the part of defendant, those duties
were owed to LaPalm and not to the decedent, as the circuit court correctly noted.
Moreover, plaintiff’s argument ignores the last sentence of MCL 330.1946(1);
MSA 14.800(946)(1), which provides, “Except as provided in this section, a
mental health professional does not have a duty to warn a third person of a threat
as described in this subsection or to protect the third person.” (Emphasis added.)
We believe that this language is unambiguous and clearly limits the duty a mental
health professional owes to third persons to the duty to warn identifiable third
persons “as provided in this section. . . .” Plaintiff cannot claim the benefit of any
alleged breach of duty to LaPalm, and the statute plainly provides that defendant
did not owe a duty to the decedent. [Id. at 198-199 (emphasis in original).]
The Swan Court further ruled that to the extent the plaintiff’s position could be interpreted as
arguing that the defendant owed a common-law duty to the decedent, rather than a statutory duty,
we disagree with plaintiff’s argument. An individual generally has no duty to
protect another who is endangered by a third person’s conduct. Jenks [v Brown,
219 Mich App 415; 557 NW2d 114 (1996)], supra at 420-421. A duty of
reasonable care may arise where one stands in a special relationship with either
the victim or the person causing the injury. Id. at 421. “Special relationships”
recognized under Michigan law include psychiatrist-patient and doctor-patient.
Marcelletti v Bathani, 198 Mich App 655, 664; 500 NW2d 124 (1993). Michigan
courts have established in this context a duty of reasonable care toward only those
third parties who are “ ‘readily identifiable as foreseeably endangered.’” Jenks,
supra at 421, quoting Marcelletti, supra at 665.
In Jenks, the Court discussed the possibility of a mental health
professional owing a common-law duty to third persons in the context of a trial
court’s refusal to allow the plaintiff leave to add a common-law theory of
negligence to his complaint against the defendant. The panel did not decide
whether a common-law duty flowing from psychiatrists to third persons had
survived the enactment of MCL 330.1946; MSA 14.800(946). However, the
panel determined that the proposed amendment was futile because the patient had
not communicated any threat of violence against the plaintiff. Jenks, supra at
421. In the present case, we also do not need to decide whether a common-law
duty survived the enactment of the statute because no foreseeable danger to
plaintiff’s decedent was made known during defendant’s treatment of LaPalm.
Nor did LaPalm communicate any threat of violence against the decedent or any
other persons, except himself. Under these circumstances, defendant had no
common-law duty to warn or protect the decedent. See id. [Id. at 200-201.]
See also Buczkowski v McKay, 441 Mich 96, 100-109; 490 NW2d 330 (1992); Williams v
Cunningham Drug Stores, Inc, 429 Mich 495, 498-499; 418 NW2d 381 (1988).
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As the trial court correctly recognized, this Court’s decision in Swan is dispositive of the
present matter. The Swan Court expressly and unequivocally held that pursuant to MCL
330.1946, mental health professionals have no duty to warn or protect third persons, like
decedent herein, unless the psychiatric patient communicates a threat against a reasonably
identifiable third person. Thus, verbal communication of a threat of physical violence directed
toward the victim is absolutely essential to liability under the statute.
Consequently, Swan bars plaintiff’s analogous claim against defendants in the instant
case. Although there is conflicting evidence regarding the severity of Chesley’s condition and
the potential danger Chesley posed to the public at large, the record is devoid of any evidence
that Chesley ever communicated a specific threat against decedent to any of the defendants.
Accordingly, defendants had no legally cognizable duty to protect or warn decedent under the
terms of the statute, and the trial court therefore did not err in granting summary disposition in
favor of defendants.
Moreover, to the extent plaintiff argues a special relationship existed between defendants
and decedent by virtue of her status as defendants’ psychiatric patient, thereby allegedly giving
rise to a common-law duty to protect decedent from foreseeable harm, we find plaintiff’s
argument to be without merit.
As a general rule, there is no legal duty that obligates one person to aid or protect another.
Krass v Tri-County Security, Inc, 233 Mich App 661, 668-669; 593 NW2d 578 (1999).
Moreover, it is well settled that there is no duty to protect another from the criminal acts of a
third party in the absence of a special relationship between the defendant and the plaintiff or the
defendant and third party. Id.; Phillips v Deihm, 213 Mich App 389, 397; 541 NW2d 566
(1995); Bell & Hudson PC v Buhl Realty Co, 185 Mich App 714, 717; 462 NW2d 851 (1990);
Papadimas v Mykonos Lounge, 176 Mich App 40, 46-47; 439 NW2d 280 (1989). The
underlying rationale for this rule is the fact that “[c]riminal activity, by its deviant nature, is
normally unforeseeable.” Id. at 46-47. See MacDonald v PKT, Inc, ___ Mich ___; ___ NW2d
___ (2001) (Docket Nos. 114039; 115322, issued 6/26/01). A cognizable “special relationship”
requires one party’s loss of control over self-protection and the other party’s concomitant
assumption of the obligation to protect the other. As explained by our Supreme Court in
Williams, supra at 499:
The rationale behind imposing a duty to protect in these special
relationships is based on control. In each situation one person entrusts himself to
the control and protection of another, with a consequent loss of control to protect
himself. The duty to protect is imposed upon the person in control because he is
best able to provide a place of safety.
See also Buczkowski, supra at 103-104; Marcelletti v Bathani, 198 Mich App 655, 664-665; 500
NW2d 124 (1993); Dykema v Gus Macker Enterprises, Inc, 196 Mich App 6, 8-9; 492 NW2d
472 (1992); Bell & Hudson, PC, supra 717-718.
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In Hinkelman v Borgess Medical Center, 157 Mich App 314; 403 NW2d 547 (1987),5 a
psychiatric patient who was being treated on a voluntary basis at the defendant medical center
shot and killed his former girlfriend. In a wrongful death action filed against the medical center,
the plaintiff administrator of the decedent’s estate alleged that the defendant was negligent in
failing to warn others of the patient’s dangerous propensities and in allowing the patient to leave
the hospital. This Court rejected the plaintiff’s argument, stating:
First, plaintiff has failed to allege any facts that would establish the
requisite special relationship between defendant and Daniel Travis [psychiatric
patient]. As was noted by the trial court, Travis was not a hospital patient for any
appreciable length of time. Rather, on two occasions he voluntarily admitted
himself and stayed for only a few hours. The hospital was not afforded sufficient
time to begin to evaluate and treat Travis. On the facts presented, there was no
special relationship established that would impose a duty on the hospital.
***
Plaintiff also asserts that the defendant had a duty to keep Travis
hospitalized, either under an unspecified common law duty or pursuant to the
Mental Health Code. . . .
Critical to our analysis is the fact that Travis was a voluntary patient.
Mental institutions are not prisons, nor places where people are confined to
oblivion. . . . Rather, the voluntary patient carries the key to the hospital’s exit in
his hand. . . . Indeed, MCL 330.1412; MSA 14.800(412) provides that informal
voluntary patients shall be allowed to terminate hospitalization.
The duty of a psychiatric treatment facility to protect third persons is
premised upon the facility’s special relationship to the patient. However, in order
to take charge of a person in such a manner as will create a duty to control his
conduct, the facility must possess the ability to control that person’s conduct. . . .
Thus, while mental hospitals charged with control and treatment of dangerous
patients have been held responsible for patient conduct, the duty has been imposed
based upon the control vested by involuntary commitment. . . . In contrast, where
a patient’s hospitalization was voluntary, no duty has been imposed due to the
facility’s inability to compel patient confinement. . . .
In the instant case, defendant Borgess Medical Center had little, if any,
ability to control Travis. As a voluntary patient, Travis’ hospitalization or
freedom was subject to his own volition. Under the circumstances, the hospital
cannot now be charged with the consequences of Travis’ decision to leave. [Id. at
322, 324-325 (citations omitted).]
5
Although Hinkelman was decided prior to the passage of MCL 330.1946, its reasoning is
nonetheless relevant to the present case.
-9-
See also Paul v Plymouth General Hosp, 160 Mich App 537, 541-542; 408 NW2d 492 (1987).
The reasoning of this Court in Hinkelman applies to the present case and nullifies the
argument that defendants had a “special relationship” with either decedent or Chesley at the time
of decedent’s murder in December 1994. Mark Chesley was refusing all treatment at the time of
the incident and was not part of any active community mental health treatment program being
provided by any of these defendants. In fact, Chesley had been discharged from the defendants’
outpatient program some ten months before decedent’s murder, as a result of his decision to
refuse to accept services being offered by these defendants and his preference to pursue mental
health services elsewhere. Decedent was voluntarily receiving outpatient community mental
health services at the time of her death. As the Hinkelman Court noted, in this capacity she was
treated under the mental health code as a legally competent adult with the inherent right to make
her own decisions absent a direct court order to the contrary. While defendants advised her not
to have men, including Chesley, as her roommates, since their presence allegedly violated the
specific terms of her lease and would require a cut in her housing allowance, the decision was
decedent’s to make. It is undisputed that she chose to ignore this advice.
We, therefore, conclude that under the circumstances, where defendants lacked the
requisite control over either patient – Chesley or decedent – in light of their status as voluntary
patients, a “special relationship” giving rise to a duty to protect decedent from the unforeseeable
criminal acts of Chesley did not exist. In sum, the trial court did not err in granting summary
disposition in favor of defendants pursuant to MCR 2.116(C)(10). In light of our conclusion in
this regard, we need not address the issues raised in the cross appeal of defendants Lifeways and
Douglas.
Affirmed.
/s/ Donald E. Holbrook, Jr.
/s/ Harold Hood
/s/ Richard Allen Griffin
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