Rollins v. Petersen , 162 Utah Adv. Rep. 10 ( 1991 )

ZIMMERMAN, Justice:

The Estate of Marcel Schopf (the estate) brought this wrongful death action against the State of Utah, the Utah State Hospital (the hospital), Dale R. and Susette A. Brown, and Jon Michael Petersen. The trial court granted summary judgment in favor of the hospital and the Browns. We affirm.

On appeal from an order granting summary judgment, we view facts and inferences in the light most favorable to the losing party. See, e.g., Beach v. University of Utah, 726 P.2d 413, 414 (Utah 1986). We recite the facts accordingly. State v. Verde, 770 P.2d 116, 117 (Utah 1989).

Jon Michael Petersen was admitted to the hospital in May of 1982, having been admitted on four previous occasions. His diagnosis was schizo-affective disorder, and his commitment to the hospital has since been renewed continuously by the fourth district court. Petersen’s admission in 1982 resulted from an incident in which he held hostage and stabbed his roommate. His history at the hospital shows that he is quick to anger and is sometimes verbally abusive, but that he does not stay angry, bear grudges, or become physically aggressive. His hospital record includes two escapes: an AWOL in September of 1983, and a “walk away” from a halfway house in March of 1985.

Petersen had been assigned to the hospital’s adult unit 11, a locked ward. Prior to November 1, 1986, Petersen’s treatment team had given him a blue “self-escort” pass. Holders of blue passes at the hospital have the privilege of leaving the ward without supervision for a period not to exceed an hour and fifteen minutes, during which they may buy snacks, use pay phones, walk the grounds, etc. When the holder of a blue pass leaves the locked ward, the required procedure is that the patient “sign out,” i.e., inform the ward attendant of the time the patient leaves, the patient’s expected destination, and a description of the patient’s clothing. A patient who has not returned within five minutes of the expected time is considered a “potential AWOL,” and the staff takes measures to locate the patient.

Patients at the hospital also have certain “industrial” duties. Petersen’s assigned industrial duty was to return lunch trays used in the ward to the kitchen on another floor. He requested and was granted permission to waive the sign-out requirement when he left the ward regularly for this specific purpose.

On the morning of November 1, 1986, Petersen refused several requests to get out of bed and take his medication. Thus, by the time he did comply, his privileges had been revoked for the day. After lunch, between 12:15 and 12:30 p.m., Petersen left the ward to return lunch trays in accordance with his industrial assignment. He did not sign out. He then left the hospital grounds entirely and, finding the Browns’ unattended automobile with its engine running on a nearby residential street, stole the car and drove away. Some minutes later (and approximately an hour after leaving the hospital), as he attempted to evade police on Interstate 15, Petersen lost control of the car, crossed into the path of oncoming traffic, and collided head-on with another vehicle, killing Marcel Schopf.

Schopf’s estate brought suit against the Browns, alleging that they negligently failed to secure their automobile and that Schopf’s death proximately resulted. The estate also alleged that the hospital was negligent in failing to comply with its established policies, in allowing Petersen to walk away from the facility, and in not adequately instituting its own AWOL procedures to recover him. The trial court granted summary judgment for the Browns and the hospital on the ground that neither owed a duty of care to Schopf. The court also granted summary judgment in favor of the hospital on the alternative ground of governmental immunity. On appeal, the estate argues that summary judgment was improperly granted for the Browns and the hospital. It argues that section 41-6-105 of the Code, which requires owners of cars to secure their vehicles when left unattended, creates a duty owed by the Browns to Schopf. The estate also contends that under the Restatement, the hospital owed a duty to Schopf as well.

Summary judgment is appropriate only when there exists no genuine issue of material fact and the moving party is entitled to judgment as matter of law. Utah R.Civ.P. 56(c); see, e.g., Landes v. Capital City Bank, 795 P.2d 1127, 1129 (Utah 1990); Utah State Coalition of Senior Citizens v. Utah Power & Light Co., 776 P.2d 632, 634 (Utah 1989). We accord no deference to the trial court’s conclusions of law, reviewing them for correctness. Landes, 795 P.2d at 1129; Madsen v. Borthick, 769 P.2d 245, 247 (Utah 1988).

We first consider the estate’s claim that the trial court erred in finding that no valid cause of action for negligence had been alleged against the hospital because it owed the decedent no duty of care. As we stated in Beach v. University of Utah, 726 P.2d 413 (Utah 1986), “One essential element of a negligence action is a duty of reasonable care owed to the plaintiff by defendant.... Absent a showing of a duty, [the plaintiff] cannot recover.” Beach, 726 P.2d at 415 (citing Hughes v. Housley, 599 P.2d 1250, 1253 (Utah 1979); Williams v. Melby, 699 P.2d 723, 726 (Utah 1985)); accord Ferree v. State, 784 P.2d 149, 151 (Utah 1989). In Beach and our recent decision in Ferree, we found that the relationship between the allegedly negligent institution and the plaintiff was not such that a duty of care was owed. In both cases, we affirmed summary judgment for the institutions.

In the present case, the hospital argues that Ferree controls and that it owed no duty to protect the decedent from Petersen. In Ferree, a patient was released from a corrections center for the weekend. While on release, he murdered Dean Ferree. We upheld a grant of summary judgment for the corrections center, finding that the center owed no duty of care to Ferree, a member of the public at large. Ferree, 784 P.2d at 153. Plaintiffs here argue that Ferree is factually distinguishable. They urge that we follow the Restatement of Torts’ criteria for determining when a duty is owed to third persons by a custodian who has taken control of the one causing injury. Under these criteria, plaintiffs argue, the hospital should be found to owe a duty to the decedent.

We acknowledge the general applicability in Utah of the “special relation” analysis described in sections 314 through 320 of the Restatement of Torts. See generally Restatement (Second) of Torts §§ 314-320 (1965). A brief review of that concept will assist in understanding our disposition of plaintiffs’ claim under section 319. Section 315 sets out the general tort principle that one has no duty to control the conduct of third persons. The Restatement then lists two exceptions to this general rule. First, if “a special relation exists between the actor and the third person,” then the actor has a duty to “control the third person’s conduct.” Restatement (Second) of Torts § 315 (1965). Second, if “a special relation exists between the actor” and the plaintiff, the plaintiff has “a right to [the actor’s] protection,” presumably against harm from third persons. Id.¹

These two exceptions are given more detailed explanation in sections 319 and 314 respectively of the Restatement. Section 319 states:

One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.

Restatement (Second) of Torts § 319. Section 314A attempts to define some of the circumstances that create a special relation between the actor and the plaintiff.

(4) One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his [or her] normal opportunities for protection is under a duty [to protect] the other [against unreasonable risk of physical harm].

Restatement (Second) of Torts § 314A(4) (1965). Thus, section 314A is concerned with imposing a duty on the custodian to protect the detainee from harm, while section 319 attempts to define when the custodian has a duty to employ reasonable care to prevent a detainee from harming others.

Under the Restatement analysis, then, the critical question is whether a special relation exists that would give rise to a duty upon which liability could be based. Our recent cases of Beach and Ferree have dealt with the existence of a special relation.

In Beach v. University of Utah, 726 P.2d 413 (Utah 1986), we followed the approach of section 314A and analyzed the relationship between the student and the university to determine whether it could be characterized as “special,” thereby imposing a duty on the university to protect the student from her own intoxication. In making this determination, we described as essentially pragmatic the approach we would take in dealing with claims that special relationships existed which gave rise to consequent duties:

Determining whether one party has an affirmative duty to protect another ... requires a careful consideration of the consequences for the parties and society at large. If the duty is realistically incapable of performance, or if it is fundamentally at odds with the nature of the parties’ relationship, we should be loath to term that relationship “special” and to impose a resulting “duty,” for it is meaningless to speak of “special relationships” and “duties” in the abstract. These terms are only labels which the legal system applies to defined situations to indicate that certain rights and obligations flow from them; they are “an expression of the sum total of those considerations of policy which lead the law to say that a particular plaintiff is entitled to protection.”

Beach, 726 P.2d at 418 (citations omitted).

We then reviewed all the relevant factors, including the nature of the modern university, its relationship to its students, and the impact a finding of “special relationship” would have in this context. We concluded that no such relation existed and that the plaintiff was owed no duty to protect her from herself.

This brings us to the recent case of Ferree v. State. The claim of the decedent’s estate in Ferree was, in essence, a claim under the principles of section 319 of the Restatement relied upon by plaintiffs here, another subspecies of the “special relation” duties described generally in section 315 and analyzed in Beach. In Ferree, we analyzed the relationship of the corrections center to a plaintiff, an otherwise indistinguishable member of the general public, who was killed by an inmate. Although we did not cite section 314, 315, or 319 of the Restatement in disposing of the Ferree claims of a special relation, our analysis generally followed the pragmatic approach of Beach. For example, in finding that no special relation existed between the institution and the plaintiff and, consequently, that no duty was owed to any members of the public to protect them from dangerous persons released from state custody, we reasoned:

To adopt plaintiffs’ theories would impose too broad a duty of care on the part of corrections officers toward individual members of the public. It would expose the state to potentially every wrong that flows from the necessary programs of rehabilitation and paroling of prisoners. Given the increases in prison populations, the effect could well be to burden corrections officials and chill legitimate rehabilitative programs. Parole and probation programs are subject to occasional tragic failures of human nature and the imprecision associated with predicting violent human conduct, but they are also practically indispensable. The public interest would not be served by imposing liability on corrections officials and the state for the uncertain success that attends parole and probation programs.

Ferree v. State, 784 P.2d 149, 151 (Utah 1989).

We concluded in Ferree that if the officials had reason to believe that a detainee presented a danger to a particular third person, a special relation, and hence a duty, might be established apart from a generalized duty to protect the public at large. However, we found that no such showing had been made in Ferree. Therefore, we affirmed the trial court decision granting the corrections center summary judgment. See id. at 152-53.

Returning to the present case, plaintiffs contend that under the language of section 319 of the Restatement, we should find a special relation to exist between the hospital and the public at large and, therefore, impose a duty on the hospital to protect the public at large from allegedly dangerous persons in custody. Because plaintiffs recognize that the claim here is similar to that rejected in Ferree, they request that we either distinguish Ferree or reject it as inconsistent with section 319. We decline to accept this invitation for essentially the same pragmatic reasons we did not find a special relation and a consequent duty in Beach and Ferree.

We elaborated on these pragmatic considerations in Ferree. They apply equally here. Prisoners are almost always released at some point, and those committed to state hospitals are treated for eventual release. The prison’s parole and minimum security programs are designed to give the inmate the best opportunity to successfully become a member of society again. Analogously, the hospital is charged with placing those under its care in the minimum level of secure confinement consistent with the treatment. See generally Utah Code Ann. §§ 62A-12-234(10)(d), -235(2), -241 (1989). Yet both prisoners and patients in the hospital almost defini-tionally are dangerous to someone. See Utah Code Ann. §§ 62A-12-209(2)(d), -232(l)(a) & (b), -234(10)(b) (1989 & Supp. 1990).² To find the claimed special relation and the consequent duty would be inconsistent with the performance of the functions assigned to the custodian by the legislature. If these custodians owed a duty to every member of the public for any harm done by a person under their control, the broad potential for liability could effectively cripple these programs. In such settings, we conclude that, in the words of Beach, “the duty [proposed] is realistically incapable of performance [and] ... it is fundamentally at odds with the notions of the parties’ relationship_” Beach, 726 P.2d at 418. Therefore, we adhere to Fer-ree and reject imposition of this duty.

The approach plaintiffs advocate under section 319 would have the anomalous result of making custodians running transitional programs virtual insurers of their services, while leaving the public without any prospect of recovery from the custodian once the inmates or patients are released from custody. Yet some of their former inmates and patients will almost certainly remain or again become dangerous. It strikes us as unsound to place the vitality of transitional programs at risk solely in the interest of finding a solvent defendant responsible for any harm caused by one in custody when custody itself has relatively little correlation to one’s dangerousness. All custodial decisions and transitional programs present critical risks to some members of the public, and public acceptance of that risk is part of the legislative policy decision that people who may be dangerous are not to be locked up for life simply because of that potential dangerousness.

The sensible approach is to recognize a duty on the part of the custodian that does not discourage the operation of transitional programs, but requires the custodian to use special care when the one in custody sets him- or herself apart from the others in terms of dangerousness to an identifiable person or persons. At that point, a special relation can be said to arise because the one in custody has sufficiently distinguished him- or herself from the general detained population. This is what we held in Ferree.

To bring section 319 into harmony with our Ferree approach, we must read into section 319 the following limitation. Before any duty is imposed to protect others from bodily harm caused by one under control of the state, the “others” to whom such bodily harm is “likely” and in favor of whom the duty arises must be reasonably identifiable by the custodian either individually or as members of a distinct group. Generally, for a person or group to be reasonably identifiable, the bodily harm caused will be of a type that the custodian knew or should have known the detainee was likely to cause if not controlled. And here we emphasize that the term is “likely” to cause, not “might” cause. See generally State v. Knight, 734 P.2d 913, 919-20 (Utah 1987) (discussion of relative degrees of probability). When section 319 is read with this qualification, the duty imposed upon the custodian is narrowed to workable dimensions.

We now apply this standard to the facts of the present case as against the hospital. The question becomes whether Schopf was reasonably identifiable by the hospital either individually or as a member of a distinct group. Viewing the facts in the light most favorable to plaintiffs, we find that he was not. The record is devoid of any evidence to indicate that, as to the hospital, Schopf was in any way distinguishable, either himself or as a member of any distinct group that may be injurable. Rather, Schopf was simply a member of the public, no more distinguishable to the hospital than to any other person. As to the hospital, Petersen had not set himself apart in terms of dangerousness to Schopf personally or to any distinct group of which Schopf was a member. Therefore, the hospital owed no duty to Schopf.

The hospital also argues that it is entitled to immunity under the Governmental Immunity Act. See Utah Code Ann. § 63-30-1 to -38 (1989). Plaintiffs argue that immunity is waived under section 63-30-10(1). See Utah Code Ann. § 63-30-10(l)(a) & (j) (1989). We need not, however, address this argument because we have already determined that the hospital owed no duty to Schopf.³

We next consider whether the trial court correctly found that there was no cause of action against the Browns. The estate claimed that the Browns owed a duty to the decedent not to leave their car unattended with the keys in it, that they breached that duty, and that as a consequence Schopf was killed. Plaintiffs base their claim of a duty on the fact that section 41-6-105 of the Code imposes a duty on operators of motor vehicles to turn off the engine, lock the ignition, and remove the key when they leave the car unattended. See Utah Code Ann. § 41-6-105 (1988).

Section 41-6-105 provides:

No person driving or in charge of a motor vehicle shall permit it to stand unattended without first stopping the engine, locking the ignition and removing the key, placing the transmission in “park” or the gears in “low” or “reverse” if the vehicle has a manual shift, or effectively setting the brakes thereon; and, when standing upon any perceptible grade, turning the front wheels to the curb or side of the highway.

Utah Code Ann. § 41-6-105 (1988). Violation of this provision is a class B misdemeanor. See Utah Code Ann. § 41-6-12 (1988). Plaintiffs reason that under section 286 of the Restatement (Second) of Torts, such a legislative declaration of policy establishes the standard of care owed a decedent. The Browns admit to violating section 41-6-105. Therefore, the question is whether we should view the requirement of section 41-6-105 as establishing a tort duty owed to any person who might be injured in an accident involving one who steals a car as a result of the statute’s violation.

Section 286 of the Restatement lists circumstances under which it is appropriate for a court to adopt a statutory standard of conduct as that of a reasonable person and to impose a tort duty to act toward a person in accordance with that standard:

The court may adopt as the standard of conduct of a reasonable [person] the requirements of a legislative enactment or an administrative regulation whose purpose is found to be exclusively or in part

(a) to protect a class of persons which includes the one whose interest is invaded, and

(b) to protect the particular interest which is invaded, and

(c) to protect the particular interest against the kind of harm which has resulted, and

(d) to protect that interest against the particular hazard from which the harm results.

Restatement (Second) of Torts § 286(a)-(d) (1965).

On the other hand, section 288 of the Restatement lists conditions under which courts generally will not impose a tort duty to act in accordance with a legislative standard:

The court will not adopt as the standard of conduct of a reasonable [person] the requirements of a legislative enactment or an administrative regulation whose purpose is found to be exclusively

(a) to protect the interests of the state or any subdivision of it as such, or

(b) to secure to individuals the enjoyment of rights or privileges to which they are entitled only as members of the public, or

(c) to impose upon the actor the performance of a service which the state or any subdivision of it undertakes to give the public, or

(d) to protect a class of persons other than the one whose interests are invaded, or

(e) to protect another interest than the one invaded, or

(f) to protect against other harm than that which has resulted, or

(g) to protect against any other hazards than that from which the harm has resulted.

Restatement (Second) of Torts § 288 (1965).

As a general proposition, we agree with the guidelines contained in sections 286 and 288 of the Restatement. See Christensen v. Lelis Automatic Transmission Serv., Inc., 24 Utah 2d 165, 467 P.2d 605 (1970) (violation of statute is negligence in some instances); Knapstad v. Smith’s Management Corp., 774 P.2d 1 (Utah Ct.App.1989) (violation of safety statute is negligence only if person injured is member of class to be protected by statute). See generally Owens v. Garfield, 784 P.2d 1187, 1193 (Utah 1989) (Zimmerman, J., concurring specially) (agreeing with majority that statute created no tort duty in present case and refusing to speculate as to when such a statute might create duty).

However, as guidelines, these sections are only the starting point for our analysis. Under section 286 of the Restatement, relied upon by plaintiffs, before section 41-6-105 can be used as a basis for imposing a tort duty in favor of the decedent, we must be persuaded that the purpose of the statute was to protect a class of persons of which Schopf is a member and to protect persons such as Schopf against injury or death resulting from a thief’s careless operation of the car. Section 41-6-105 does not specify its purpose, nor does it specify that it is intended to protect any particular class of persons. Additionally, nothing in the statute indicates a legislative intent to protect persons such as Schopf against harm resulting from a thief’s negligent operation of a stolen car. In the absence of such explicit language, we cannot conclude that the statute was intended to create a duty to the decedent to protect him from the harm which befell him. See 57A Am.Jur.2d Negligence § 739 (1989); see also Sellinger v. Freeway Mobile Home Sales, Inc., 20 Ariz.App. 238, 511 P.2d 682 (1973) (penal statutes do not create civil cause of action unless expressly stated in statute or clearly implied in legislative intent); M.H. v. State, 385 N.W.2d 533 (Iowa 1986) (where statute does not expressly authorize private suits, no cause of action absent legislative intent).⁴

Most jurisdictions with similar statutes also have ruled as a matter of law that these statutes are not intended to impose liability on the owner of a stolen car for injuries to third parties. See, e.g., Richards v. Stanley, 43 Cal.2d 60, 271 P.2d 23 (1954) (no duty to protect plaintiff from negligent driving of a thief). Such statutes are read more appropriately as intended to protect the owner and to assist law enforcement. See Annotation, Liability of Motorist Who Left Key in Ignition for Damage or Injury Caused by Stranger Operating the Vehicle, 45 A.L.R.3d 787 (1972). This view comports well with the language of our statute, which not only requires that the keys be removed, but also that the parking brake be engaged and the wheels turned to avoid an accidental runaway.

Because we do not find that section 41-6-105 is intended to protect those suffering injuries resulting from the careless operation of automobiles by thieves, we hold that section 41-6-105 imposes no duty on the Browns that is actionable by Schopf. See Restatement (Second) of Torts § 288(d)-(f) (1965). This holding is in harmony with past cases of this court holding that mere ownership of an automobile does not render the owner liable for the negligent actions of the driver.⁵ See, e.g., Wilcox v. Wunderlich, 73 Utah 1, 272 P. 207 (1928); McFarlane v. Winters, 47 Utah 598, 155 P. 437 (1916).

The trial court’s decision granting summary judgment in favor of the hospital and the Browns is affirmed.

HALL, C.J., HOWE, Associate C.J., and STEWART, J., concur.

1 . Section 315 provides:

There is no duty so to control the conduct of a third person as to prevent him [or her] from causing physical harm to another unless

(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or

(b) a special relation exists between the actor and the other which gives to the other a right to protection.

Restatement (Second) of Torts § 315 (1965). See generally Owens v. Garfield, 784 P.2d 1187, 1189 (Utah 1989); Hale v. Allstate Ins. Co., 639 P.2d 203, 205 (Utah 1981).

2 . Section 209 requires dangerousness to self or others before commitment of mentally ill persons who have been found not guilty. Utah Code Ann. § 62A-12-209(2)(d) (Supp.1990). Section 232 requires a showing of dangerousness before one may be temporarily committed on the recommendation of a "responsible person” or a "physician or designated examiner.” Utah Code Ann. § 62A-12-232(l)(a) & (b) (1989). Finally, before involuntary commitment by court order, there must be a showing by clear and convincing evidence that the person to be detained poses a danger to self or others. Utah Code Ann. § 62A-12-234(10)(b) (1989).

3 . Contrary to assertions in Justice Durham's dissenting opinion, the legislature's abrogation of absolute sovereign immunity does not lead to the conclusion that the public duty doctrine has also been abrogated. Legislative recognition of a right to recover from one who has previously been immune from liability for tortious acts cannot logically be read as an elimination of the requirement that before one can recover damages from another, a tort must be proven. There must still be proof of a duty owed to the one claiming injury and a breach of that duty.

Therefore, in the present case, as in any tort case, the proper mode of analysis is to first consider whether there is a legal theory upon which suit can be brought (in this case, whether the hospital owed a duty to Schopf) before considering the separate and independent questions of whether the hospital is immune. See Ferree v. State, 784 P.2d 149 (Utah 1989); Beach v. University of Utah, 726 P.2d 413 (Utah 1986). But cf. Doe v. Arguelles, 716 P.2d 279 (Utah 1985) (considering governmental immunity question first).

4 . This court has previously held, “[As] a general rule, violation of a standard of safety set by statute or ordinance is prima facie evidence of negligence." Hall v. Warren, 632 P.2d 848, 850 (Utah 1981); see also Gaw v. State, 798 P.2d 1130, 1133-34 (Ct.App.1990). However, as the Restatement explains, before violation of a legislative standard will be held to be negligence per se (or prima facie evidence of negligence), the legislative standard must first be "adopted by the court as defining the standard of conduct of a reasonable [person].’’ Restatement (Second) of Torts § 288B (1965); see also Hall, 632 P.2d at 850 n. 1. The question here presented is not whether violation of a safety statute is negligence per se or prima facie evidence of negligence, but rather the preliminary question of whether the legislative standard imposes a duty recognizable in tort as the standard of a reasonable person.

5 . This court also has held that knowingly entrusting one’s car to an incompetent driver may result in liability to the owner. See Mugleston v. Glaittli, 123 Utah 238, 258 P.2d 438 (1953). However, leaving the keys in the ignition of an unattended car, while perhaps making theft of the car foreseeable, certainly is not knowing entrustment of the car to an incompetent driver. See generally Richards v. Stanley, 43 Cal.2d 60, 271 P.2d 23 (1954) (no duty to protect plaintiff from negligent driving of a thief).