Avitia v. Crisis Preparation & Recovery Inc.

107 Arizona Cases Digest 31

536 P.3d 776

Samuel AVITIA, Plaintiff/Appellant,

v.CRISIS PREPARATION AND RECOVERY INC., Defendant/Appellee.

No. CV-22-0288-PR

Supreme Court of Arizona.

Filed October 16, 2023

David L. Abney (argued), Ahwatukee Legal Office, P.C., Phoenix; Darius O. Bursh, Marc D. McCain, Zari Panosian, McCain & Bursh Attorneys at Law, P.C., Scottsdale; and Jill Kennedy, Kennedy Kemmet PLLC, Phoenix, Attorneys for Samuel Avitia

Carol M. Romano (argued), Resnick & Louis, P.C., Scottsdale, Attorneys for Crisis Preparation and Recovery, Inc.

Lincoln Combs, O'Steen & Harrison, PLC, Phoenix, Attorneys for Amicus Curiae Arizona Association for Justice

JUSTICE BOLICK authored the Opinion of the Court, in which CHIEF JUSTICE BRUTINEL and JUSTICES LOPEZ, BEENE, MONTGOMERY, and KING joined. VICE CHIEF JUSTICE TIMMER concurred in part, dissented in part, and concurred in the result.

JUSTICE BOLICK, Opinion of the Court:

¶1 In this case we are asked to decide whether mental health professionals have a statutory or common law duty to third parties for harm caused by a patient under their care. We hold that the statutory duty to report child abuse or neglect under A.R.S. § 13-3620(A) does not encompass reporting a risk of future harm. We also hold that mental health professionals owe a duty to third parties based not on foreseeability of harm, but on their special relationship and public policy. Because prior judicial decisions found a duty in such circumstances based on foreseeability, see Hamman v. County of Maricopa , 161 Ariz. 58, 775 P.2d 1122 (1989) and Little v. All Phoenix South Community Mental Health Center , 186 Ariz. 97, 919 P.2d 1368 (App. 1996), we overrule those decisions.

BACKGROUND

¶2 The mother of Samuel Avitia's twin boys ("Mother") has a long history of mental health problems. She has been evaluated and treated by numerous mental health professionals, including professionals working for Crisis Preparation and Recovery, Inc. ("Crisis Prep").

¶3 In May 2011, a Crisis Prep counselor attempted to evaluate Mother twice while she was receiving inpatient mental health treatment. However, the counselor was unsuccessful in completing an evaluation because Mother was too psychotic the first time and refused the evaluation on the second attempt. Records from her stay at the behavioral hospital reflect that Mother exhibited concerning behavior toward others and had an infatuation with putting things in water as part of a ritualistic cleansing of spirits.

¶4 Mother met Avitia in the summer of 2012 and became pregnant shortly after. In 2013, she gave birth to twin boys. Avitia and Mother never married and lived separately. In accordance with a custody order, the twins were in Avitia's care half the time. Although he maintained his custody schedule, he had little communication with Mother. Mother lived primarily with her mother ("Grandmother") and stepfather in their home, and sometimes with her father in his apartment. Grandmother often cared for the twins. Mother and her family informed Avitia that Mother had serious mental health issues, including suicidal ideation, that she had been hospitalized to address those issues, and that the twins were cared for by Mother's family during those periods.

¶5 In October 2013, Mother's parents took her to a Recovery Innovations facility because she reported seeing demons, was depressed and anxious, and was displaying erratic behavior at home. While receiving inpatient mental health treatment, a Crisis Prep licensed professional counselor evaluated Mother and determined that she did not meet the criteria for seriously mentally ill status because she appeared "to be completely clear in thought and functioning fairly well once again." However, the counselor determined that her symptoms "appear to meet criteria for Brief Psychotic Disorder with Marked Stressors and a secondary of Primary Insomnia."

¶6 Then in April 2014, Mother suffered an extreme psychotic episode and consequently was taken to an emergency room, where another Crisis Prep licensed professional evaluated her. Grandmother told the counselor that she was "terrified" for Mother to be alone with the twins and that the family was concerned as to how she would behave with them. The counselor concluded that Mother should be voluntarily transferred for inpatient care, treatment, and stabilization in a behavioral health unit. Mother was told that if she refused this care, they would petition the court for involuntary treatment. Mother then attempted to leave the hospital, assaulting hospital personnel in the process.

¶7 The next day, a different Crisis Prep licensed professional counselor initiated the process for involuntary court-ordered evaluation and treatment pursuant to A.R.S. § 36-523, alleging that Mother was a danger to herself and others, and persistently or acutely disabled. The superior court granted the petition for court-ordered treatment, finding that Mother was a danger to herself and persistently or acutely disabled, but not a danger to others, then ordered inpatient treatment. Mother was transported to Desert Vista Behavioral Health Center ("Desert Vista").

¶8 At Desert Vista, Mother was evaluated by two professionals who disagreed on the level of treatment that Mother required. Thereafter, the superior court held an evidentiary hearing on another petition for court-ordered treatment to determine whether Mother met the seriously mentally ill criteria, which would require different treatment. The court found that as a result of her mental disorder, Mother was "persistently or acutely disabled and a danger to self," and there were no appropriate alternatives to treatment. The court therefore ordered combined inpatient and outpatient treatment. The record does not reflect that Crisis Prep employees evaluated or provided services to Mother after May 2014.

¶9 In May 2015, Mother's involuntary treatment order expired, and she was released. On August 10, 2015, Mother voluntarily sought treatment from Recovery Innovations again for concerns of danger to self. Recovery Innovations’ staff assessed Mother and found her to be a danger to others and in need of emergency hospitalization. Mother was transferred to Desert Vista Hospital and a psychiatrist there petitioned for court-ordered treatment. Mother was discharged to her home and the petition was dismissed when the psychiatrist at Desert Vista Hospital informed the court that he could not proceed with the petition. Tragically, Mother drowned the twin boys five days later.

¶10 One year after the boys’ deaths, Avitia filed a wrongful death claim against the state, Maricopa County, and numerous healthcare providers. As to Crisis Prep, Avitia's claims included negligence; medical negligence; negligent oversight, training, retention, and supervision; and respondeat superior liability. Avitia asserted that Crisis Prep had a duty to report Mother's abuse or neglect of the twins and had not done so. He also claimed that Crisis Prep failed in its common law duty to warn and protect the boys.

¶11 However, during Avitia's deposition, he admitted that when he would pick up his twins from Mother's parents’ homes, "they were happy ... always smiling," and that there were no "signs of abuse or anything like that towards the kids." Avitia also stated that throughout the custody arrangement, he did not see any neglect of the twins and believed that Grandmother and stepfather provided a stable environment for them.

¶12 On motion for summary judgment brought by Crisis Prep and another healthcare provider, the superior court directed entry of final judgment in favor of Crisis Prep on all claims. The court found that Crisis Prep did not have a duty to report Mother's condition to the Department of Child Safety or any other state agency given that Mother was undergoing court-ordered treatment. Avitia timely appealed from this decision.

¶13 The court of appeals affirmed the superior court's decision to grant Crisis Prep's motion for summary judgment. Avitia v. Crisis Preparation and Recovery Inc. , 254 Ariz. 213, 215 ¶¶ 1–2, 521 P.3d 373, 375 (App. 2022). The court of appeals addressed Avitia's two claimed sources of Crisis Prep's potential duty: (1) a statutory duty to report under § 13-3620(A) ; and (2) a common law duty to warn and protect foreseeable victims as recognized by Hamman and Little . Id. at 218–21 ¶¶ 25–39, 521 P.3d at 378–381. In addressing the statutory duty, the court explained that under § 13-3620(A), Crisis Prep personnel had the duty in April or May of 2014 (over a year before the twins’ deaths) to report "if they reasonably believed the twins were being, or had been, abused or neglected by Mother." Id. at 219 ¶ 28, 521 P.3d at 379. However, the court found such a case did not present itself, and therefore Crisis Prep had no statutory duty to report under § 13-3620(A). Id. In addressing the common law duty based on a special relationship with Mother, the court declined to expand the duty "into one to warn and protect others based solely on foreseeability" because of subsequent precedent from this Court. Id . at 221 ¶ 39, 521 P.3d at 381 (citing Gipson v. Kasey , 214 Ariz. 141, 150 P.3d 228 (2007) ; Quiroz v. ALCOA Inc. , 243 Ariz. 560, 416 P.3d 824 (2018) ; Dinsmoor v. City of Phoenix , 251 Ariz. 370, 492 P.3d 313 (2021) ).

¶14 Avitia petitioned this Court for review of (1) whether the statutory duty to report child abuse or neglect under § 13-3620(A) encompasses reporting a risk of future harm; and (2) whether a common law duty to warn and protect foreseeable victims still exists after Gipson and its progeny. As to the second question, Avitia specifically asserted that the court of appeals erred by refusing to apply and questioning the viability of the "controlling precedent," Hamman and Little . These are important unresolved issues of statewide concern. We have jurisdiction under article 6, section 5(3) of the Arizona Constitution.

DISCUSSION

¶15 This Court reviews the...