The Arizona Supreme Court issues this opinion the same day as Torres. After holding the anti-abrogation clause does not apply to evolving duties, the Arizona Supreme Court explicitly overrules the duty created in Hamman v. County of Maricopa and Little v. All Phoenix South Community Mental health Center.  The Court in Hamman held a mental health professional has a duty to warn or protect third persons whose “circumstances place them within the reasonably foreseeable area of danger where the violent conduct of the patient is a threat.”  This duty is based on foreseeability, and in Gipson v. Kasey, the Court rejected foreseeability as a factor in determining duty.  Both the trial court and the court of appeals concluded Hamman may no longer be good law, and the court of appeals invited the Supreme Court to explicitly overrule those cases.  For the most part, the Supreme Court agrees with the court of appeals.

The father of two boys filed this lawsuit after they were murdered by their mentally ill mother. The Supreme Court agrees with the court of appeals reasoning and analysis. First, the Court considers a statutory claim of failure to report child abuse of neglect. Because there was no evidence of past or occurring abuse or neglect, the statute A.R.S. 13-3620(A) does not apply.  Moreover, creating a public policy obligation “would create an unintended incentive for mental health professionals to reflexively report patients with children to the police or to the Department of Child Safety anytime even a specter of harm arises.” Second, the Court holds Hamman and Little are no longer good law. Both cases relied upon foreseeability of harm as creating a duty. The court then suggests there may be situations where a mental health professional owes a duty and cites several Restatement provisions, but courts must exercise care to not injecting foreseeability into the duty framework.  Finally, the Court holds that A.R.S. 36-531(B) provides that if a mental health evaluation reveals a danger to the patient or others, the medical director of the agency shall petition for court ordered treatment. This is what occurred here when Crisis Prep petitioned for involuntary treatment, and court ordered treatment followed.

Justice Timmer dissents in part, and Justice Bolick spars with her dissent for confusing duty and scope of duty.  In Hamann, foreseeability was the “bootstrap by which a duty between psychiatrist and patient based on a special relationship is extended to third parties.” Justice Bolick’s rhetorical skills outmatch the other justices, but this opinion is not well written. (OK neither is this blog, but we have a 20 minute rule when posting, and no one should rely on us.) There are too many prepositional phrases beginning with the first sentence. Several sentences begin with “however,” and certain words and phrases are overused including “that,” and “in this context.” We see Justice Bolick misuse the word “found,” use the word “clearly” when it is unnecessary, and the phrase “in order to” creeps in. Minor quibbles but consider this sentence in paragraph 43. After citing three separate Restatement provisions (two from the Second Restatement and one from the Third Restatement), the Court suggests the common law may provide a remedy: “We do not speculate which, if any, of these Restatement sections apply to the facts here, and admonish that they must be read in a way that does not inject foreseeability into the duty framework and in concert with statutes addressing the subject matter.” What? A couple of months ago, we ended a post with Ogden Nash.  This time we suggest Carl Sandburg’s phrase “too many doors to go in and out of.” (from “The Lawyers Know Too Much”)