NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
PER CURIAM.
Plaintiff Ronald McKay, Jr., appeals from the Law Division's September 19, 2014, order that granted summary judgment to defendants Bergen Regional Medical Center, L.P. (the hospital), and Doctors Joel Federbush, Karine Airapetian, Asghar Hossain, Michelle Ruvolo, and Ayme V. Frometa Del Castillo (the doctors). We limit our review to the motion record, Ji v. Palmer, 333 N.J.Super. 451, 463-64 (App. Div. 2000), considering the evidence in a light most favorable to plaintiff. State v. Perini Corp., 221 N.J. 412, 425 (2015).
On April 11, 2010, C.C., a twenty-six year old man with a history of multiple, prior psychiatric commitments dating back to 2008, was involuntarily committed to the hospital with a diagnosis of "Bipolar I disorder," having been non-compliant with his medication for approximately two weeks.1 Several notes made by the doctors in C.C.'s charts thereafter reflect observations of his aggressive behavior, delusional thinking, and agitation, although only one note includes a reference to C.C.'s threatening behavior. Any such observations are, however, absent from the notes dated April 25 and 26, 2010, the date of C.C.'s discharge from the hospital. However, the notes also reveal that C.C. was frequently non-compliant with his therapy and medication, and, on his date of discharge, C.C. failed to attend his group therapy session. The hospital's discharge instructions advised C.C. to continue his antipsychotic medication and attend outpatient counseling the next day. He later reported never taking his medication after discharge, nor did he attend counseling.
On April 30, 2010, without notice or provocation, C.C. attacked plaintiff in the hallway of the apartment complex where both resided, stabbing plaintiff and burning him with a hot frying pan. There is no indication that C.C. had ever before threatened or had any type of altercation with plaintiff, and C.C. never mentioned plaintiff to the doctors or hospital staff during his commitment.
C.C. was indicted for aggravated assault but found not guilty by reason of insanity. On March 21, 2012, plaintiff filed a complaint in the Law Division against the hospital, the doctors, and the owner and managing entities of the apartment complex.2 Plaintiff filed an affidavit of merit that stated each of the doctors was negligent in the care and supervision of C.C., and the hospital was vicariously liable under the doctrine of respondeat superior.
Defendants eventually moved for summary judgment. In a comprehensive written statement of reasons, citing N.J.S.A. 2A:62A-16(a) and (b), the judge concluded defendants had no duty to warn plaintiff about C.C. He reasoned that such a duty would have only arisen if C.C. "communicated to [defendants] a threat of imminent, serious physical violence against [p]laintiff, or if [] circumstances were such that a reasonable professional in [defendants'] area of expertise would believe [C.C.] intended to carry out an act of imminent, serious physical violence against [p]laintiff." The judge also rejected plaintiff's reliance upon Marshall v. Klebanov, 188 N.J. 23 (2006), acknowledging that there, the Court drew a distinction between a breach of the duty to warn pursuant to N.J.S.A. 2A:62A-16, and "liability for a deviation in the standard of care." However, the judge concluded plaintiff had "no basis to use [C.C.'s] doctor-patient relationship as the basis for his own cause of action." The judge also rejected plaintiff's contention that any immunity provided by N.J.S.A. 2A:62A-16 was limited to the doctors and did not extend to the hospital.
Finally, the judge rejected plaintiff's argument that N.J.S.A. 30:4-27.1 to-27.23, which provides a comprehensive scheme for civil commitment, provided an independent cause of action against defendants for failing to keep a dangerous individual committed. He entered the order under review.3
On appeal, plaintiff argues that N.J.S.A. 2A:62A-16 does not confer immunity upon the hospital, nor does it immunize the doctors for any breach of the duty they owed to their patient, C.C. Plaintiff also contends that the doctors were legally responsible for any injuries caused as a result of a breach of their duty to C.C. Additionally, plaintiff argues that N.J.S.A. 30:4-27.1 "places a statutory duty on defendants," and violations of the statute are actionable negligence per se. We have considered these in light of the record and applicable legal standards and affirm.
"[W]e review the trial court's grant of summary judgment de novo under the same standard as the trial court." Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co., 224 N.J. 189, 199 (2016) (citing Mem'l Props., LLC v. Zurich Am. Ins. Co., 210 N.J. 512, 524 (2012)). "To the extent that the grant or denial of summary judgment is based on an issue of law, we owe no deference to an interpretation of law that flows from established facts." Perini Corp., supra, 221 N.J. at 425 (citing Town of Kearny v. Brandt, 214 N.J. 76, 92 (2013)). In this case, whether defendants owed a duty to plaintiff, or whether plaintiff has a cognizable claim based upon an alleged breach of the duty defendants owed C.C., is purely a legal issue. See, e.g., J.S. v. R.T.H., 155 N.J. 330, 337 (1998) (discussing imposition of a duty and the scope or boundaries of the duty as matters of law to be decided by the court). Similarly, we owe no deference to the trial court's interpretations of any statute. Zabilowicz v. Kelsey, 200 N.J. 507, 512 (2009).
In McIntosh v. Milano, 168 N.J.Super. 466 (Law Div. 1979), the court denied summary judgment to a psychiatrist who failed to warn of his patient's violent fantasies directed toward the decedent. Id. at 470-76, 496. In the absence of specific legislation, the court expansively defined the duty as follows:
a psychiatrist or therapist may have a duty to take whatever steps are reasonably necessary to protect an intended or potential victim of his patient when he determines, or should determine, in the appropriate factual setting and in accordance with the standards of his profession established at trial, that the patient is or may present a probability of danger to that person. The relationship giving rise to that duty may be found either in that existing between the therapist and the patient... or in the more broadly based obligation a practitioner may have to protect the welfare of the community, which is analogous to the obligation a physician has to warn third persons of infectious or contagious disease.
[Id. at 489-90.]
In 1991, the Legislature enacted N.J.S.A. 2A:62A-16 (the statute), which provides in relevant part:
a. Any person who is licensed in the State of New Jersey to practice psychology, psychiatry, medicine, nursing, clinical social work or marriage counseling... is immune from any civil liability for a patient's violent act against another person or against himself unless the practitioner has incurred a duty to warn and protect the potential victim as set forth in subsection b. of this section and fails to discharge that duty as set forth in subsection c. of this section.
b. A duty to warn and protect is incurred when the following conditions exist:
(1) The patient has communicated to that practitioner a threat of imminent, serious physical violence against a readily identifiable individual or against himself and the circumstances are such that a reasonable professional in the practitioner's area of expertise would believe the patient intended to carry out the threat; or
(2) The circumstances are such that a reasonable professional in the practitioner's area of expertise would believe the patient intended to carry out an act of imminent, serious physical violence against a readily identifiable individual or against himself.
Specifically citing McIntosh as indicative of the growth in the number of civil lawsuits filed by victims of violent crime against mental health professionals, the Legislature indicated its intention was to clarify a practitioner's legal responsibility to warn of a patient's potential for violence. Marshall, supra, 188 N.J. at 36 (citations omitted).
Initially, we dispatch with plaintiff's contention that the statute's use of the word "person" means that it may immunize the doctors against any failure to warn claim, but it does not immunize the hospital. Recently, where suit was brought against a correctional facility based upon its alleged vicarious liability for its medical professionals, we rejected such a "hyper-literal reading" of the Affidavit of Merit Statute. McCormick v. State, ___ N.J. Super. ___, ___ (App. Div. 2016) (slip op. at 8). Similarly, here, since the hospital was solely alleged to be liable under the doctrine of respondeat superior, and plaintiff concedes the doctors could not be liable for a failure to warn, the statute cloaked the hospital with immunity from liability for any failure to warn plaintiff.
Plaintiff contends, and we agree, that the statute does not immunize the doctors from a claim of medical negligence. In Marshall, supra, 188 N.J. at 27, the Court held that the statute did not "immunize a psychiatrist from liability when it [was] alleged that the psychiatrist abandoned a seriously depressed patient and negligently failed to provide the patient with adequate monitoring or treatment" before she committed suicide. As the Court clearly stated, "[a] practitioner's common-law duty to exercise that degree of care, knowledge, and skill for his or her patient that would be followed by any reasonable member of the profession under like circumstances exists separate and apart from any duty to warn and protect pursuant to [the statute]." Id. at 38.
Plaintiff argues, however, that the doctors breached their professional duty to C.C., and, given C.C.'s aggressive behavior while under the doctors' care, it was foreseeable he would harm others. Plaintiff relies upon the tenets of common law negligence, as well as N.J.S.A. 30:4-27.11a(d), for support. We reject the arguments.
N.J.S.A. 30:4-27.11a(d) provides that individuals receiving assessment and treatment on an involuntary basis "are entitled to receive professional treatment of the highest standard," and, indeed, the immunity provisions of N.J.S.A. 30:4-27.7 do not apply when professional standards are allegedly violated. See, e.g., Vasilik v. Federbush, 327 N.J.Super. 6, 12 (App. Div. 1999). Additionally, N.J.S.A. 30:4-27.1(c) expresses numerous public purposes, one of which is "that persons with mental illness who are determined to be dangerous to themselves, others or property should be subject to involuntary treatment in the least restrictive environment possible...." (Emphasis added).
However, plaintiff cannot cite to any reported case in New Jersey that extends these statutory provisions to a suit brought by someone other than the patient or his or her immediate family members. Reviewing the entire statutory scheme, we find no principled reason to conclude that a proven violation of these provisions of Title 30 is, as plaintiff argues, "negligence per se," or, more importantly, that the statute extends any right of action to the public at large.
Finally, we reject plaintiff's claim that the doctors owed him a duty under principles of common law negligence. In J.S., the Court said that
[i]n determining whether a duty is to be imposed, courts must engage in a rather complex analysis that weighs and balances several, related factors, including the nature of the underlying risk of harm, that is, its foreseeability and severity, the opportunity and ability to exercise care to prevent the harm, the comparative interests of, and the relationships between or among, the parties, and, ultimately, based on considerations of public policy and fairness, the societal interest in the proposed solution.
[J.S., supra, 155 N.J. at 337 (citing Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993)).]
"Foreseeability of the risk of harm is the foundational element in the determination of whether a duty exists." Ibid. (citing Williamson v. Waldman, 150 N.J. 232, 239 (1997)). "In some cases where the nature of the risk or the extent of harm is difficult to ascertain, foreseeability may require that the defendant have a `special reason to know' that a `particular plaintiff' or `identifiable class of plaintiffs' would likely suffer a `particular type' of injury." Id. at 338 (citing People Express Airlines, Inc. v. Consol. Rail Corp., 100 N.J. 246, 262 (1985)).
Further, when the risk of harm is that posed by third persons, a plaintiff may be required to prove that defendant was in a position to "know or have reason to know, from past experience, that there [was] a likelihood of conduct on the part of [a] third person[]" that was "likely to endanger the safety" of another.
[Ibid. (quoting Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496, 507 (1997)).]
"Regardless of how the duty is defined, its `scope... is determined under the totality of the circumstances, and must be reasonable under those circumstances.'" Potomac Aviation, LLC v. Port Auth. of N.Y. and N.J., 413 N.J.Super. 212, 226-227 (App. Div. 2010) (quoting J.S., supra, 155 N.J. at 339). "In fixing the limits of liability as a matter of public policy, courts must draw on `notions of fairness, common sense, and morality.'" J.S., supra, 155 N.J. at 339 (quoting Hopkins, supra, 132 N.J. at 443).
Contrary to plaintiff's assertion, neither Marshall nor McIntosh support his contention that the doctors' duty to C.C. included a duty to the public to prevent the results of C.C.'s alleged foreseeable violence. In Marshall, supra, 188 N.J. at 27-28, the suit was brought by the patient's husband, who alleged his wife's suicide was proximately caused by the doctor's negligent treatment. In McIntosh, 168 N.J. Super. at 470-71, it was the estate of a young woman, shot and killed by the defendant's psychiatric patient, who brought the litigation. Neither case recognized a cause of action brought by an unrelated third-party based upon a breach of a doctor's duty to his patient.
We acknowledge that, in limited circumstances, our courts have imposed a duty to take reasonable action to guard against the acts of a third party. In J.S., for example, the Court found a duty existed on the part of a wife to take reasonable actions to prevent the sexual abuse of her neighbor's children by her husband. J.S., supra, 155 N.J. at 334, 353-54. The Court found that the close relationship between the defendant and her neighbors, her knowledge of the considerable amount of time the girls spent alone with her husband and her actual or constructive knowledge of her husband's "proclivities/ propensities" made it "particularly foreseeable" that her husband was abusing the girls. Id. at 353. Similarly, we recently found facts sufficient under "J.S.'s standard of particularized foreseeability" to impose a duty upon a school board for failing to report a teacher's conduct to authorities, thereby exposing other children in another school district to sexual abuse. Child M. v. Fennes, ___ N.J. Super. ___, ___ (App. Div. 2016) (slip op. at 13).
In this case, however, plaintiff admits that it was not particularly foreseeable that C.C. would violently attack him. Nor is there anything in the record to support a claim that a violent attack on anyone was foreseeable, based upon C.C.'s past actions. Assuming arguendo, however, that C.C.'s conduct during his involuntary commitment should have alerted the doctors to the fact that he might be dangerous to others, "foreseeability is only one of several factors relevant to the issue of duty." Potomac Aviation, supra, 413 N.J. Super. at 225. "Ultimately, the determination of the existence of a duty is a question of fairness and public policy." J.S., supra, 155 N.J. at 339 (citing Clohesy, supra, 149 N.J. at 502). "`Fairness, not foreseeability alone, is the test' in this regard." Potomac Aviation, supra, 413 N.J. Super. at 226 (quoting Kuzmicz v. Ivy Hill Park Apts., Inc., 147 N.J. 510, 515 (1997)).
Plaintiff would have us extend the duty that the doctors owed to C.C., i.e., to render care in accordance with recognized professional standards, to the public at large, because it was foreseeable that by negligently releasing C.C., others, unknown and unnamed, were placed at risk. "Traditional notions of fairness disfavor creation of such an obligation, and we decline the invitation." Sacci v. Metaxas, 355 N.J.Super. 499, 507 (App. Div. 2002).
In this regard, we find plaintiff's citation to out-of-state authority to be either distinguishable or unpersuasive. As a court of intermediate appellate jurisdiction, "[w]e leave such a radical change in the law to the Legislature or the Supreme Court." Ibid.; and see Riley v. Keenan, 406 N.J.Super. 281, 297 (App. Div. 2009) (noting that an appellate court "should normally defer to the Supreme Court with respect to the creation of a new cause of action") (citing Tynan v. Curzi, 332 N.J.Super. 267, 277 (App. Div. 2000)), certif. denied, 200 N.J. 207 (2009).
Affirmed.
