Barry v. Turek
267 Cal.Rptr. 553, 1990 Cal. App. LEXIS 264, 218 Cal. App. 3d 1241 (1990)
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Rule of Law:
Under California Civil Code § 43.92, a psychotherapist is statutorily immune from liability for a patient's violent acts unless the patient has communicated to the psychotherapist a serious threat of physical violence against a reasonably identifiable victim or victims.
Facts:
- Dr. Peter Turek provided psychological care to Bismillah Jan, a 17 or 18-year-old Afghani war veteran, at St. Mary's Hospital.
- Jan suffered from severe head and neck injuries, wore a mask covering most of his face, and spoke no English.
- Between approximately May 15 and May 25, 1986, Jan repeatedly followed, grabbed, and attempted to kiss and fondle female nurses on the hospital's seventh floor.
- Dr. Turek and his assistants were aware of this behavior and instructed Jan to stop.
- Jan never made any verbal threats of violence.
- Margaret Barry worked as an office manager in the social services department on the seventh floor.
- On June 6, 1986, Jan entered Barry's office, pushed her against a wall, and sexually assaulted her by attempting to fondle her and force her legs open while he masturbated.
- The assault was interrupted when another employee returned to the office, at which point Jan fled.
Procedural Posture:
- Margaret Barry filed a lawsuit against Dr. Peter Turek and others in a California trial court for negligence and negligent infliction of emotional distress.
- Dr. Turek filed a motion for summary judgment, asserting statutory immunity under Civil Code § 43.92.
- The trial court granted Dr. Turek's motion for summary judgment, ruling that Barry failed to show the case fell within the statutory exception to immunity.
- Margaret Barry, as the appellant, appealed the trial court's grant of summary judgment to the California Court of Appeal.
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Issue:
Does a patient's prior non-violent but inappropriate sexual conduct, such as grabbing and attempting to kiss nurses, constitute a communicated 'serious threat of physical violence' sufficient to negate a psychotherapist's statutory immunity under Civil Code § 43.92?
Opinions:
Majority - Kline, P. J.
No. A patient's prior inappropriate conduct does not constitute a 'serious threat of physical violence' for the purposes of establishing an exception to the immunity provided by Civil Code section 43.92, subdivision (a). While the court found that Margaret Barry was a reasonably identifiable victim, as she was part of an identifiable group of female employees on the seventh floor, the statutory exception to psychotherapist immunity requires more than a pattern of non-violent, inappropriate behavior. Jan's prior acts of grabbing and attempting to kiss nurses, while improper, did not involve physical violence, and medical records did not suggest the nurses were frightened. Because Jan's prior conduct did not communicate to Dr. Turek that he was likely to commit a serious sexual assault, the statutory threshold for a 'serious threat of physical violence' was not met, and Dr. Turek is therefore immune from liability.
Concurring-in-part-and-dissenting-in-part - Benson, J.
No. Although I concur in the judgment that there was insufficient evidence of a 'serious threat of physical violence,' I dissent from the majority's conclusion that Margaret Barry was a 'reasonably identifiable victim.' Citing Thompson v. County of Alameda, I argue that the potential victim pool was not limited to female employees on the seventh floor but included any accessible woman in the entire hospital—a 'large amorphous public group of potential targets.' It would be unreasonable and impractical to require a psychotherapist to warn such a broad and changing population. The majority's narrow definition of the victim class is an unduly restrictive view that ignores the realities of a large hospital and undermines the legislative intent of the immunity statute, which requires the victim to be reasonably identifiable.
Analysis:
This decision clarifies the 'serious threat of physical violence' standard under California Civil Code § 43.92, establishing a high bar for plaintiffs seeking to overcome psychotherapist immunity. The court's holding demonstrates that a pattern of non-violent, albeit inappropriate and physical, conduct is insufficient to trigger a therapist's duty to warn. The case also reveals a significant judicial split on how to define a 'reasonably identifiable victim,' with the majority finding a small, defined group sufficient, while the dissent argues for a stricter standard where warning a large, amorphous group is impractical. This distinction has significant implications for future cases determining the scope of a therapist's duty to warn when a patient makes generalized or non-specific threats.
