Jenks v. Brown , 219 Mich. App. 415 ( 1996 )

557 N.W.2d 114 (1996) 219 Mich. App. 415

Charles Davey JENKS, Plaintiff-Appellant,
v.
Dr. Viktor BROWN and Henry Ford Health System, Inc., Defendants-Appellees.

Docket No. 180927.

Court of Appeals of Michigan.

Submitted June 19, 1996, at Detroit. Decided October 11, 1996, at 9:30 a.m. Released for Publication December 23, 1996.

Googasian, Hopkins, Hohauser & Forhan by Craig M. Weber, Bloomfield Hills, for plaintiff-appellant.

Kitch, Drutchas, Wagner & Kenney, P.C. by Susan Healy Zitterman, Detroit, for defendants-appellees.

Before WAHLS, P.J., and MURPHY and C.D. CORWIN,^[*] JJ.

PER CURIAM.

Plaintiff appeals as of right from the trial court's order granting summary disposition in favor of defendants. We affirm. In his complaint, plaintiff alleges a failure to warn in violation of § 946 of Michigan's Mental Health Code, M.C.L. § 330.1946; M.S.A. § 14.800(946).

Plaintiff argues that the trial court erred in concluding that plaintiff failed to state a cause of action. We disagree. Defendants filed a motion for summary disposition pursuant to MCR 2.116(C)(8) and (10). Because the trial court did not look beyond the pleadings in granting defendants' motion, we review this issue pursuant to MCR 2.116(C)(8). See Brown v. Drake-Willock Int'l, Ltd., 209 Mich.App. 136, 143, 530 N.W.2d 510 (1995); Shirilla v. Detroit, 208 Mich.App. 434, 436-437, 528 N.W.2d 763 (1995).

A motion for summary disposition brought under MCR 2.116(C)(8) relies on the pleadings alone, and all well-pleaded factual allegations in a complaint are taken as true, as well as any reasonable inferences or conclusions that can be drawn from the allegations. Peters v. Dep't of Corrections, 215 Mich.App. 485, 486, 546 N.W.2d 668 (1996). A motion for summary disposition under MCR 2.116(C)(8) should be granted only when the claim is so clearly unenforceable as a matter of law that no factual development could possibly justify a right of recovery. Peters, p. 487, 546 N.W.2d 668. This Court reviews a grant of summary disposition de novo on appeal. Id., p. 486, 546 N.W.2d 668.

Plaintiff's complaint alleges that his marriage to Diane Loncar produced one child, a son born in 1984. On October 13, 1987, plaintiff and Loncar were divorced. The judgment of divorce was modified in 1991 to award physical custody of the child to plaintiff and to deny visitation rights to Loncar. Until June 1, 1991, Loncar received psychiatric treatment from defendant Brown. Plaintiff alleges that during her treatment, Loncar told defendants that she intended to kidnap her child and take him "underground."

To establish a prima facie case of negligence, the plaintiff must prove: (1) that the defendant owed a duty to the plaintiff; (2) that the defendant breached that duty; (3) that the defendant's breach of duty was a proximate cause of the plaintiff's damages; and (4) that the plaintiff suffered damages. Baker v. Arbor Drugs, Inc., 215 Mich.App. 198, 203, 544 N.W.2d 727 (1996). Duty is any obligation that the defendant has to the plaintiff to avoid negligent conduct. Simko v. Blake, 448 Mich. 648, 655, 532 N.W.2d 842 (1995); Baker, supra, p. 203, 544 N.W.2d 727. In negligence actions, the existence of a duty is a question of law for the court. Simko, supra, p. 655, 532 N.W.2d 842; Baker, supra, p. 203, 544 N.W.2d 727.

Plaintiff's claim alleges that defendants breached their duty under M.C.L. § 330.1946; M.S.A. § 14.800(946), which provides in pertinent part:

(1) If a patient communicates to a mental health professional who is treating the patient a threat of physical violence against a reasonably identifiable third person and the patient has the apparent intent and ability to carry out that threat in the foreseeable future, the mental health practitioner has a duty to take action as prescribed in subsection (2). Except as provided in this section, a mental health professional does not have a duty to warn a third person of a threat as described in this subsection or to protect the third person.

The question of to whom a mental health practitioner owes a duty under this statute is one of first impression.

When courts construe statutory meaning, their primary goal is to ascertain and give effect to legislative intent. Institute in Basic Life Principles, Inc. v. Watersmeet Twp. (After Remand), 217 Mich.App. 7, 12, 551 N.W.2d 199 (1996). This Court should look first to the specific statutory language to determine the intent of the Legislature. Id. In order to ascertain legislative intent, this Court may examine the legislative history of an act to ascertain the reason for the act and the meaning of its provisions. In re Brzezinski, 214 Mich.App. 652, 665, 542 N.W.2d 871 (1995). A court may consider journals chronicling legislative history. Id.

Enacted in 1989, the duty to warn statute was created to limit the liability of mental health practitioners. House Legislative Analysis, HB 4237, July 11, 1989. In prior years, the commonlaw duty to warn had been extended in some cases to unnamed third parties and even to property. Id. In response to these developments, the duty to warn statute limited a mental health practitioner's duty to that as provided in the statute. M.C.L. § 330.1946(1); M.S.A. § 14.800(946)(1). Furthermore, in order for any duty to arise, a patient must communicate "a threat of physical violence against a reasonably identifiable third person." Id. It is apparent from the language of the statute and its legislative history that it is intended to protect only those readily identifiable individuals against whom a threat of physical violence is made. See Marcelletti v. Bathani, 198 Mich.App. 655, 661, 500 N.W.2d 124 (1993).

In his complaint, plaintiff does not allege that Loncar communicated to defendant Brown a threat of physical violence against plaintiff. Rather, the child is the only "reasonably identifiable third person" against whom Loncar allegedly communicated any kind of threat. Taking plaintiff's well-pleaded facts to be true, we hold that defendants did not owe a duty to plaintiff under M.C.L. § 330.1946; M.S.A. § 14.800(946). In addition, plaintiff's claim is not asserted on behalf of his son, but on his own behalf. Accordingly, the trial court did not err in holding that plaintiff's complaint failed to state a cause of action. Simko, supra, p. 655, 532 N.W.2d 842; Peters, supra, p. 486, 546 N.W.2d 668; Baker, supra, p. 203, 544 N.W.2d 727. Because of our disposition of this issue, we need not address plaintiff's argument that a threat to kidnap constitutes a threat of physical violence.

Plaintiff also argues that the trial court erred in denying his motion to amend his complaint. We disagree. Amendment is generally a matter of right rather than grace. Patillo v. Equitable Life Assurance Society of the United States, 199 Mich.App. 450, 456, 502 N.W.2d 696 (1992). A trial court should freely grant leave to amend if justice so requires. MCR 2.118(A)(2). Leave to amend should be denied only for particularized reasons, such as undue delay, bad faith, or dilatory motive on the movant's part, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party, or where amendment would be futile. Horn v. Dep't of Corrections, 216 Mich.App. 58, 65, 548 N.W.2d 660 (1996). This Court reviews grants and denials of motions for leave to amend pleadings for an abuse of discretion. Id.

Here, plaintiff's proposed amendments would be futile. Plaintiff sought leave to add to his complaint a count for loss of society and companionship under the Child Protection Law, M.C.L. § 722.621 et seq.; M.S.A. § 25.248(1) et seq. However, this statute "creates a private right of action only in an identified abused child." Marcelletti, supra, p. 661, 500 N.W.2d 124. Because plaintiff does not have a right of action under the Child Protection Law, the trial court did not abuse its discretion in denying his motion for leave to amend his complaint to add this count. Horn, supra, p. 65, 548 N.W.2d 660.

Plaintiff also sought leave to add to his complaint a count under a common-law theory of negligence. An injury to a child does not give the child's parent a cognizable claim for loss of consortium or society and companionship. Sizemore v. Smock, 430 Mich. 283, 285, 422 N.W.2d 666 (1988).

To the extent that plaintiff's proposed complaint alleges claims for damages other than for loss of consortium or society and companionship, an individual generally has no duty to protect another who is endangered by a third person's conduct. Marcelletti, supra, p. 664, 500 N.W.2d 124. A duty of reasonable care may arise where one stands in a special relationship with either the victim or the person causing the injury. Id. Michigan courts have established in this context a duty of reasonable care toward only those third parties who are "readily identifiable as foreseeably endangered." Id., p. 665, 500 N.W.2d 124.

Danger to a third person is foreseeable only where the psychiatrist determines, or pursuant to the standards of his profession should determine, that his patient presents a serious danger of violence to another. Davis v. Lhim, 124 Mich.App. 291, 303, 335 N.W.2d 481 (1983), rev'd on other grounds sub. nom Canon v. Thumudo, 430 Mich. 326, 422 N.W.2d 688 (1988). Because there was no serious danger of violence to plaintiff, any special relationship that may have existed between defendants and plaintiff's son did not extend to plaintiff. As the Court stated in Sizemore, supra, pp. 292-293, 422 N.W.2d 666, "although it is eminently foreseeable that a negligent injury to one party will result in adverse consequences that affect others to one degree or another, the law cannot redress every injury." Accordingly, we hold that plaintiff's proposed amendment to add a count under a common-law theory of negligence was futile.^[1]Marcelletti, supra, pp. 664-665, 500 N.W.2d 124; Davis, supra, p. 303, 335 N.W.2d 481. The trial court did not abuse its discretion in denying plaintiff's motion for leave to amend his complaint to add this count. Horn, supra, p. 65, 548 N.W.2d 660.

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] We do not address in this opinion whether a claim brought against a mental health practitioner under a common-law theory of failure to warn is superseded by M.C.L. § 330.1946; M.S.A. § 14.800(946).