Halverson v. Pikes Peak Family Counseling & Mental Health Center, Inc. ( 1990 )

Opinion by

Judge NEY.

In this negligence action against the Pikes Peak Family Counseling and Mental Health Center, Inc., plaintiff, Evelyn Marie Halverson, appeals from a judgment granting defendant’s C.R.C.P. 12(b) motion to dismiss her complaint for failure to state a claim. We reverse and remand with directions to reinstate plaintiff’s complaint.

Plaintiff’s complaint alleges that, while she was an inpatient at the Center, she was sexually assaulted by another patient there with a history of violent behavior. Plaintiff asserts that defendants were negligent in failing to protect her and in failing to supervise and control the attacker after defendants had notice of the attacker’s violent propensities towards plaintiff.

The single issue on appeal is whether the district court erred in dismissing plaintiff’s complaint for failure to state a claim upon which relief can be granted based upon the provisions of § 13-21-117, C.R.S. (1987 Repl.Vol. 6A). That statute provides:

“No physician, social worker, psychiatric nurse, psychologist, or other mental health professional and no mental health hospital, community mental health center or clinic, institution, or their staff shall be liable for damages in any civil action for failure to warn or

protect any person against a mental health patient’s violent behavior, nor shall any such person be held civilly liable for failure to predict such violent behavior, except where the patient has communicated to the mental health care provider a serious threat of imminent physical violence against a specific person or persons. When there is a duty to warn and protect under the circumstances specified above, the duty shall be discharged by the mental health care provider making reasonable and timely efforts to notify any person or persons specifically threatened, as well as notifying an appropriate law enforcement agency or by taking other appropriate action including, but not limited to, hospitalizing the patient.... The provisions of this section shall not apply to the negligent release of a mental health patient from any mental hospital or ward or to the negligent failure to initiate involuntary seventy-two-hour treatment and evaluation_” (emphasis added)

I.

Plaintiff initially contends that the immunity conferred by § 13-21-117 is inapplicable to acts of hospitalized patients, and that the statute was intended only to provide immunity for a health care provider’s failure to warn or protect others against potential violent behavior of outpatients over whom the provider maintains no control. We disagree.

The statute contains no words suggesting such a limitation upon its application. It expressly extends immunity to mental health hospitals, community mental health centers or clinics, and their staff members who fail to warn or protect others against a mental health patient’s violent propensities, tendencies, or generalized threats of potential violence. Had the General Assembly intended the statute to apply only to outpatients, it could have used the words “a mental health outpatient’s” instead of “a mental health patient’s” in defining the scope of the immunity conferred.

If, as here, the language of a statute is clearly expressed, we need not resort to rules of statutory construction or extrinsic indicators, such as legislative history, to determine legislative intent. See Humana, Inc. v. Board of Adjustment, 189 Colo. 79, 537 P.2d 741 (1975); Lassner v. Civil Service Commission, 177 Colo. 257, 493 P.2d 1087 (1972).

II.

Plaintiff next contends that, even if § 13-21-117 applies to conduct of hospitalized inpatients, the allegations of the complaint were sufficient to state a claim. We agree.

The introductory clause of the first sentence of § 13-21r117 grants immunity from liability to health care providers for their failure to warn others of a patient’s dangerous propensities or his generalized threats of violence against unspecified persons. However, the last clause of that sentence limits the grant of immunity by excepting those instances involving a patient’s communication to the health provider of a serious threat of imminent physical violence against a specified person or persons, thus recognizing and imposing a duty upon the health care provider under those circumstances.

The second sentence of § 13-21-117 confirms the legislative recognition of the remaining duty, and delineates how a health care provider may satisfy or discharge that duty to warn or protect those against whom specific threats have been communicated. That sentence provides that the duty to warn or protect may be discharged by reasonable and timely efforts to notify the person or persons threatened, by notifying an appropriate law enforcement agency, or by “taking other appropriate action including, but not limited to hospitalizing the patient.”

If, as here, specific threats directed against another who is accessible to an already hospitalized patient are communicated to a health care provider, then mere continued hospitalization may not be sufficient to discharge the health provider’s duty to warn or protect the threatened person. Plaintiffs complaint alleges that “the institutional defendants new (sic) or should have known that [the alleged rapist] had ... [engaged in] prior aggressive behavior toward [plaintiff] and, in fact, the institutional defendants were aware of same and of prior conduct exhibited by [the alleged rapist] toward [plaintiff].” •

This allegation, if true, would bring plaintiffs claim within the exception provided in § 13-21-117. In addition, the allegation is sufficient to raise the issue whether defendants discharged their duty to warn or protect by making reasonable and timely efforts to warn or otherwise protect Halverson against the threatened harm of which they were aware by virtue of the communicated threats.

When relying on a motion to dismiss a complaint pursuant to C.R.C.P. 12(b), for failure to state a claim, the allegations made in the complaint must be viewed in a light most favorable to plaintiff. Factual allegations made in the complaint must be deemed to be true. Bell v. Arnold, 175 Colo. 277, 487 P.2d 545 (1971).

Viewed in this light, we conclude that plaintiffs complaint was sufficient to state a claim upon which relief could be granted and that the trial court erred in ruling to the contrary.

III.

The record before us consists only of plaintiffs complaint and briefs of counsel that focus narrowly on the relationship between the alleged rapist and the defendants. The complaint contains allegations which might support a claim based upon a duty owed by defendants to plaintiff by virtue of her own alleged special relationship with the hospital. See Felger v. Board of County Commissioners, 776 P.2d 1169 (Colo.App.1988). However, because of the limited record before us and the focus of the parties’ argument, we decline to address that issue.

The judgment is reversed, and the cause is remanded with directions to reinstate plaintiffs complaint.

HUME, J., concurs. CRISWELL, J., specially concurs.