Halfway houses and mental health treatment facilities - establishing duty in tort.

AuthorSessums, Mark A.

Drug and alcohol recovery, (1) and treatment for chronic mental health issues, many times involve a stay in some form of residential facility. (2) Some of these facilities are pure halfway houses, and provide the individual with only. a bed and access to support groups. (3) Others, such as the well-known Betty Ford Centers, involve complex forms of therapy at a significant cost. (4) Many other hybrid forms of residential facilities exist with some form of treatment being provided for the resident. Do these facilities have a duty in tort such that a claim lies in the event of either a resident's self-inflicted injury or in the event of a resident's infliction of injury to third parties? This article examines the various theories of liabilities in such circumstances and concludes that in most cases a jury question is involved. (5)

In attempting to establish liability, the practitioner must first examine the circumstances as to when mental health providers are not liable under extant law. At least one Florida court has held that a treating mental health provider has no duty to involuntarily hospitalize a patient such that if a patient who is being seen on an outpatient basis attempts suicide the psychiatrist is not liable. (6) A Florida court has also affirmed a trial court's dismissal of a medical malpractice claim brought by injured persons against a mental health center when a person the center treated on an outpatient basis shot and injured two persons. (7) Thus, the examination of these cases begs the question of whether the mere fact of residency in a facility is sufficient to establish a duty of care.

Not surprisingly, at least two Florida courts have held that mere residency is not enough. In Lighthouse Mission of Orlando v. McGowen, 683 So. 2d 1086 (Fla. 5th DCA 1996), the appellate court reversed a plaintiff's judgment against a residential facility obtained after one of its residents with a history of sexual crimes raped and murdered a neighbor of the mission. The appellate court ruled that no duty of care existed as the mission had only a landlord/tenant relationship with the resident who "could leave at will." The critical facts obtained during discovery in McGowen was that the resident in McGowen had "no restraints on his liberty ... [and] lived at the [m]ission as a tenant." (8) The case apparently turned on the factual predicate of the total absence of control.

Similarly, in Metro Dade County v. Dubon, 780 So. 2d 328 (Fla. 3d DCA 2001), a homeless shelter was found not to have liability to the plaintiff who had been stabbed by another resident while residing at the shelter. Although the shelter did have rules and regulations to maintain order (which are not stated in the opinion), the residents at the shelter "were free to come and go as they pleased." Like McGowen, the plaintiff failed to establish that the shelter had any control over the resident.

The plaintiff must, therefore, be mindful of this case law and seek to sufficiently discover facts that trigger the applicable tort principles relative to liability. It is also important to query whether the above-referenced cases sufficiently examine the underpinning tort principles involved. As stated by the Florida Supreme Court, the "minimal threshold legal requirement" to bring an action for negligence in Florida requires that defendant's alleged actions "created a foreseeable 'zone of risk' in harming others." Kitchen v. K-Mart Corp. 697 So. 2d 1200 (Fla. 1997). (9) Consequently, the paradigm, pursuant to the authority of Kitchen, is that the failure to properly run a facility providing mental health treatment in some form creates an action for negligence when harm results from an action or inaction that created the risk of harm. More specifically, under the standard of law expressed in Kitchen, the zone of foreseeable risk is arguably created when a treatment facility either enforces policies, or fails to enforce policies, or fails to have policies, and the failure causes harm to to its residents or to third-parties that is foreseeable. Obviously, a very broad duty is established by the authority in Kitchen.

It is also important to note that numerous cases stand for the proposition that under appropriate circumstances a person has a duty to protect others' self-inflicted injuries. (10) For example, in White v. Whiddon, 670 So. 2d 131 (Fla. 1st DCA 1996), the parents of a teenager who "had been having serious emotional problems" called the sheriff's office to transport their son to a mental health facility for treatment. The teenager was handcuffed and placed in the back of the patrol car. After doing so, the sheriff's deputy left the boy alone in his car and went back to the house to talk to the parents "for less than one minute." The boy slipped his handcuffed hands to the front of his body, reached through a several inch gap in the protective cage that separated the back and front seats...

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