BRENDA HAMMONS v. PATHWAYS, INC.
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RENDERED: July 13, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-000046-MR
BRENDA HAMMONS
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE LEWIS PAISLEY, JUDGE
ACTION NO. 97-CI-04058
v.
PATHWAYS, INC.
APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
EMBERTON, GUIDUGLI AND McANULTY, JUDGES.
EMBERTON, JUDGE: Brenda Hammons was raped while a resident at
Moore’s Boarding Home.
She filed a negligence action against
Moore’s, its owner, her counselor and Pathways, Inc.
The rapist,
Harry Lee Stacy, was named by Pathways as a third-party
defendant.1
The trial court entered summary judgment in favor of
Pathways and this appeal followed.
Brenda has a lengthy history of mental illness and has
been diagnosed with bipolar affective disorder.
Pathways is a
private corporation offering psychiatric and social services,
1
Stacy pleaded guilty to sexual assault.
including residential programs, for the mentally ill in Boyd,
Greenup, Rowan, Carter, Elliott, Bath, Menifee, Morgan Montgomery
and Lawrence counties.
Brenda’s records at Pathways show that
from 1982 through 1997, Pathways assisted her with daily living,
including assistance in finding housing, psychiatric counseling,
hotline counseling, and medical treatment.
On November 3, 1996, Brenda was admitted to Our Lady of
Bellefonte Hospital in Ashland and was discharged on November 4,
1996.
She sought the assistance of the Pathways Crisis Unit in
Ashland, a unit designed to house Pathways’ clients on a short
term basis.
A Pathways’ social worker, Kim Royse, contacted
Moore’s Boarding Home in Lexington which agreed to accept Brenda
as a resident.
Moore’s is outside the Pathways service area, but
according to Royse, she did not believe a place for Brenda in the
Pathways area could be found.
She had never referred anyone to
Moore’s and despite Pathways having in its possession a list of
boarding homes as current as 1995 and 1996, she obtained the
boarding home name from a 1992 list of boarding homes sent by the
Cabinet for Human Services.
Moore’s, however, did not have a
permit to operate as a boarding home; it had in fact been ordered
to cease operation under a temporary injunction on June 15, 1993.
The injunction was made permanent on January 25, 1996.
While awaiting the transfer to Moore’s, Brenda became
hostile and threatened several of the employees at Pathways.
As
a consequence, she was transported to King’s Daughters Hospital
as a patient of Pathways’ medical director, Dr. Kahn Martin.
Ross Damron, a social worker at the hospital, began to assist
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Brenda in finding a residence but after learning that Pathways
had previously placed Brenda at Moore’s, and without further
investigation, referred Brenda to Moore’s.
He obtained a taxi
voucher for her and she arrived at Moore’s on November 12, 1996.
On November 18, 1996, after being struck by Harry Lee
Stacy, Brenda voluntarily left Moore’s and admitted herself to
the Appalachian Regional Hospital in West Liberty.
On November
19, 1996, she received a seventy-two-hour involuntary commitment
to Eastern State Hospital.
Following the expiration of the
commitment she voluntarily admitted herself for further
commitment.
At the termination of that commitment, on November
27, 1996, despite the hospital’s recommendation against it,
Brenda returned to Moore’s.
As her reason for doing so she
testified that she had no money, had paid rent at Moore’s, and
she had nowhere else to live.
Then, on November 30, 1996, Brenda
was ordered by Stacy to go into his room at Moore’s.
She
complied, and was sodomized.
Pathways’ initial contention is that any duty it owed
to Brenda terminated at the time she left Pathways’ care on
November 6, 1996.
It argues that regardless of any negligence in
referring Brenda to a residence it knew, or should have known,
was dangerous for her, Brenda voluntarily chose to return and
“she must endure and cope with how all such decisions play out to
affect her life.”
Before a defendant can be held liable on
a theory of negligence, there must exist a
duty owed to the plaintiff by the defendant.
Mullins v. Commonwealth Life Insurance Co.,
Ky., 839 S.W.2d 245, 247 (1992). Grayson
Fraternal Order of Eagles v. Claywell, Ky.,
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736 S.W.2d 328 (1987), indicates that
“liability for negligence expresses a
universal duty owed by all to all.” However,
and this is a point frequently overlooked by
some, the duty to exercise ordinary care is
commensurate with the circumstances. Id. at
330. The statement of whether or not a duty
exists is but a conclusion of whether a
plaintiff’s interests are entitled to legal
protection against the defendant’s conduct.
Id. The existence of a duty is an issue of
law, and a court, when making the
determination of such existence, engages in
what is essentially a policy determination.
Mullins, supra, at 248.2
Pathways is in the profession of providing services to
mentally ill patients and owes a duty to render those services
with reasonable care.
Although it is true that on the date
Brenda was raped she was no longer a client of Pathways, the
alleged breach of duty by Pathways occurred on November 6, 1992,
in referring her to Moore’s.
Pathways contends that Brenda’s admissions to King’s
Daughters Hospital, Appalachian Hospital, Eastern State Hospital,
and her voluntary return to Moore’s were superseding causes in
that any one, or all, of those facilities could have found Brenda
a different place to live or she could have chosen a different
residence after she was struck by Stacy.
Additionally, it
contends that the criminal act of Stacy is, as a matter of law, a
superseding cause.
Brenda contends that the issue of superseding cause is
a matter for the jury to decide.
2
However, in House v.
Sheehan v. United Services Auto Ass’n, Ky. App., 913
S.W.2d 4, 6 (1996).
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Kellerman,3 the court explained that the issue is generally a
legal issue for the court to decide.
There is no dispute that
Brenda was admitted to various hospitals after Pathways’ initial
referral to Moore’s, and that she voluntarily returned to Moore’s
knowing it was there she was struck by Stacy.
Therefore, whether
any of these events superseded Pathways’ alleged negligence is an
issue properly to be resolved by the court.4
A thorough discussion of intervening and superceding
causes is found in NKC Hospitals, Inc. v. Anthony.5
After an
analysis of authorities, the court found that a superseding cause
possesses the following elements:
1) an act or event that intervenes between
the original act and the injury;
2) the intervening act or event must be of
independent origin, unassociated with the
original act;
3) the intervening act or event must, itself,
be capable of bringing about the injury;
4) the intervening act or event must not have
been reasonably foreseeable by the original
actor;
5) the intervening act or event involves the
unforeseen negligence of a third party [one
other than the first party original actor or
the second party plaintiff] or the
intervention of a natural force;
6) the original act must, in itself, be a
substantial factor in causing the injury, not
a remote cause. The original act must not
merely create negligent condition or
occasion; the distinction between a legal
3
Ky., 519 S.W.2d 380, 382 (1974).
4
Id.
5
Ky. App., 849 S.W.2d 564, 568 (1993).
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cause and a mere condition being
foreseeability of injury.
In response to Pathways’ contention that Brenda’s
admission to King’s Daughters Hospital, Appalachian Hospital and
Eastern State Hospital and return to Moore’s after the initial
striking by Stacy are superceding causes, we apply the elements
listed in NKC, supra.
Although the events occurred after
Pathways’ referral, we cannot say that any were unassociated.
There is no dispute, that as a result of Pathways’ referral,
Brenda paid rent to Moore’s, and that King’s Daughters aided her
return to Moore’s after finding that Pathways had referred her.
The initial referral by Pathways was the force that brought
Brenda back to Moore’s after each hospital release.
Unforeseeablilty is a predominate component of any
superseding cause.
Was it foreseeable that after Pathways’
referral Brenda would reside at Moore’s and return following her
release from her hospitalizations?
Brenda was miles from her
original home; she was in a city with unfamiliar surroundings;
she had little money and had already paid rent to Moore’s; she
was mentally ill; and she had been referred to Moore’s by
Pathways who had cared for her, and who had referred her to
various homes over the past fifteen years.
We find it logical to
conclude that her return to Moore’s and the hospitals’ release of
her to return to the home was foreseeable by Pathways.
But for Stacy’s intentional criminal act, Brenda would
not have sustained the injuries of which she now complains.
There is no general rule in this Commonwealth that criminal acts
of third persons relieve the original negligent actor from
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liability.
Quoting extensively from the Restatement (Second) of
Torts, the court in Britton v. Wooten,6 responded to the
assertion that criminal acts of a third person are, as a matter
of law, superseding causes.
Respondent cites Restatement (Second) of
Torts, § 448 in support of the continued
viability of criminal acts, per se, as
sufficient to cut the chain of causation.
That section postulates that “an intentional
tort or crime is a superseding cause” where
the defendant’s “negligent conduct” only
creates “a situation which afforded an
opportunity” for another to commit an
intentional tort or crime, but it adds an all
important caveat:
“. . . unless the actor [the defendant]
at the time of his negligent conduct
realized or should have realized the
likelihood that such a situation might
be created, and that a third person
might avail himself of the opportunity
to commit such a tort or crime.”
Restatement (Second) of Torts, § 449,
expands on the meaning of § 448. Section 449
postulates:
“If the likelihood that a third person
may act in a particular manner is the
hazard or one of the hazards which makes
the actor [the defendant] negligent,
such an act [by another person] whether
innocent, negligent, intentionally
tortuous, or criminal, does not prevent
the actor [the defendant] from being
liable for harm caused thereby.”
And these two sections, 448 and 449,
also must be read in conjunction with
Restatement (Second) of Torts, § 302B, “Risk
of Intentional or Criminal Conduct,” which
states:
“An act or an omission may be negligent
if the actor realizes or should realize
that it involves an unreasonable risk of
6
Ky., 817 S.W.2d 443, 449 (1991).
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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.”
The court also quoted from a treatise by Harper, James and Gray,
The Law of Torts, 2d ed. (1986):
“It is often said that an actor may
assume that others will act lawfully and
carefully. Rightly understood this is sound
enough, and no more than a corollary of the
general [negligence] principle. . . . But in
this connection two things must be noted.
The first is that such an assumption does not
always correspond to the facts. It does not
in situations where a law is generally
disobeyed. . . . And it does not wherever
the actor’s [defendant’s] conduct exposes
some interest to risk from a large and
indeterminate group of people that will
probably include some who will be negligent
or commit crime, so that the likelihood of
some negligence or some crime is
considerable, though the number of those who
will be responsible for it is relatively
small . . . . Perhaps the most significant
trend that has taken place in this particular
field, in recent years, has been the
increasing liberalization in allowing the
wrongs of other people to be regarded as
foreseeable where the facts warrant that
conclusion if they are looked at naturally
and not through the lens of some artificial
archaic notion.” Id. § 16.12 at 495-96.
And from the same treatise, § 20.5,
“Legal Cause,” pp. 154-56:
“So far as scope of duty (or, as
some courts put it, the relation of
proximate cause) is concerned, it should
make no difference whether the
intervening actor is negligent or
intentional or criminal. Even criminal
conduct by others is often reasonably to
be anticipated.”7
7
Id. at 451.
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With the general principles recited in Britton in mind,
the legal analysis set forth in House, supra, is applicable in
determining whether a criminal act is a superseding cause.
Brenda alleges that without proper investigation
Pathways referred her to Moore’s, which at the time was under an
injunction to cease operations.
There is evidence that one of
the reasons for the issuance of the injunction was because of
Stacy’s presence in the home and his violent and disruptive
tendencies.
Whether Pathways’ referral of Brenda to Moore’s
merely created the occasion for the injury or whether it was
foreseeable that Brenda would be injured if she resided at
Moore’s, is the issue.
We find that Stacy’s criminal act was a
foreseeable act and there was not a superseding cause.
Pathways purports to be a corporation offering the
services of professionals in the mental health area to its
clients who are unable to independently make decisions regarding
their daily lives.
Brenda was referred to a home ordered to
cease operations by the court because investigations found it
substandard, and found it to have a resident, Stacy, who the
investigator found constituted an “immediate and serious threat
to others.”
We have little difficulty in concluding that, under
these circumstances, it was foreseeable that Brenda would be
harmed by a resident at the home.
There was no superseding cause that relieves Pathways
of liability.
The liability, if any, of each of the other
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defendants is to be properly included in any comparative fault
instruction.8
The judgment of the Fayette Circuit Court is reversed
and the case remanded for further proceedings.
8
NKC, supra, at 569.
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ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
William J. Gallion
Bruce D. Gehle
Lexington, Kentucky
Nolan Carter, Jr.
Ronald L. Green
Todd P. Kennedy
Lexington, Kentucky
ORAL ARGUMENT FOR APPELLANT:
ORAL ARGUMENT FOR APPELLEE:
Bruce Gehle
Lexington, Kentucky
Ronald L. Green
Lexington, Kentucky
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