McArdle v. Mission Hosp., Inc.

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-554
Filed: 15 August 2017
Buncombe County, No. 14 CVS 5473
ARTHUR MCARDLE, KIMBERLY MCARDLE, SELDON JONES, JACOB
MCARDLE, HANNAH MCARDLE, BANNING MCARDLE, and FREDERICK S.
BARBOUR as Guardian ad Litem for SOPHIE MCARDLE, Plaintiffs,
v.
MISSION HOSPITAL, INC. and MISSION HEALTH SYSTEM, INC., Defendants.
Appeal by Plaintiffs from Order entered 21 January 2016 by Judge William H.
Coward in Buncombe County Superior Court. Heard in the Court of Appeals 29
November 2016.
Twiggs, Strickland & Rabenau, by Donald R. Strickland, Karen M. Rabenau,
and Katherine A. King, for Plaintiffs-Appellants.
Roberts & Stevens, P.A., by Phillip T. Jackson and Eric P. Edgerton, and Patla,
Straus, Robinson & Moore, P.A., by Richard S. Daniels, for Defendants-
Appellees.
INMAN, Judge.
[C]ompassion is a natural feeling . . . that hurries us
without reflection to the relief of those who are in distress:
it is this which in a state of nature supplies the place of
laws, morals and virtues . . . . [T]he origin of society and
law . . . irretrievably destroyed natural liberty . . . and serve
as a substitute for natural compassion, which lost, when
applied to societies, almost all the influence it had over
MCARDLE V. MISSION HOSPITAL, INC.
Opinion of the Court
individuals . . . . The people having in respect of their social
relations concentrated all their wills in one, . . . becom[ing]
so many fundamental laws, obligatory on all the members
of the State without exception, and one of these articles
regulates the choice and power of the magistrates
appointed to watch over the execution of the rest.
Jean-Jacques Rousseau, A Discourse on the Origin and Basis of Inequality, in The
Social Contract & Discourses by Jean-Jacques Rousseau 155, 199-228 (G. D. H. Cole
trans., London, J. M. Dent & Sons Ltd., 1913) (1754).
“[E]very law is universal, and there are some things about
which it is not possible to speak rightly when speaking
universally.”
Aristotle, Nicomachean Ethics 100 (Joe Sachs trans. 2002).
When a respondent in an involuntary commitment proceeding is delivered to
a hospital or other facility for an initial examination to recommend whether
commitment without the respondent’s consent is required, neither the examiner nor
the hospital or other facility obtains custody or a legal right to control the respondent
unless and until involuntary commitment is recommended by the examiner. For this
reason, neither the examiner nor the facility owes a duty to third parties for harm
resulting from an examiner’s recommendation against involuntary commitment,
even if the examination failed to comply with statutory requirements.
Arthur and Kimberly McArdle and their five surviving children (collectively
“the McArdles”) appeal a trial court’s order of 21 January 2016 denying their motion
to amend their complaint as futile and granting a motion to dismiss by Mission
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Hospital, Inc. and Mission Health System, Inc. (collectively “Defendants”) on the
basis that Defendants owed the McArdles no legal duty. We affirm.
I. Background and Procedural History
The McArdles’ complaint and proposed amended complaint include the
following allegations:
Joshua McArdle (“Joshua”), now deceased, was diagnosed with post-traumatic
stress disorder (PTSD) after serving a tour of duty in a hostile area of Iraq as a United
States Marine. He received an “Other than Honorable” discharge from the Marine
Corps in 2008 due to drug abuse, which precluded him from receiving subsequent
care through the Veterans Administration (VA). After discharge, Joshua received no
mental health or substance abuse treatment. He abused alcohol, cocaine, Percocet,
and marijuana, experienced extreme paranoia, and amassed a personal arsenal of
weapons and ammunition.
The McArdles and other family members, including Joshua, gathered in
Asheville, North Carolina in the days preceding the planned wedding of Joshua’s
sister Seldon Jones (“Seldon”), née McArdle, on 11 May 2013. During the pre-
wedding gathering Joshua engaged in episodes of violence on 7 and 8 May 2013,
including: (1) choking his brother Banning McArdle (“Banning”) while Banning was
driving, after Banning refused to take Joshua to buy drugs; (2) entering his brother
Jacob McArdle’s (“Jacob”) house at night and awakening and beating Jacob; and (3)
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attempting to break down the door of his parents’ house and again attacking Jacob.
Joshua also threatened to beat up his biological father when he arrived in town for
the wedding. During the altercation at the family home on the morning of 8 May
2013, Seldon called 911. Sheriff’s deputies arrived at the home shortly after Joshua
left.
One of the responding deputies suggested that, rather than having Joshua
arrested, the family should instead pursue involuntary commitment. The McArdles
all agreed on this course of action, and Arthur McArdle executed an Affidavit and
Petition for Involuntary Commitment (the “Petition”) before the Buncombe County
Assistant Clerk of Superior Court on the same morning. Arthur’s Petition sought
involuntary commitment of Joshua on the grounds that he was: (1) mentally ill and
dangerous to self or others and in need of treatment in order to prevent further
disability or deterioration that would predictably result in dangerousness; and (2) a
substance abuser and dangerous to self or others.
The Buncombe County Assistant Clerk of Superior Court issued a Findings
and Custody Order for Involuntary Commitment (the “Custody Order”) on 8 May
2013 finding reasonable grounds to believe that the allegations in the Petition were
true and directing law enforcement officers to take Joshua into custody for an initial
examination (“First Examination”) as required by N.C. Gen. Stat. §§ 122C-263 and
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122C-283.1 The Buncombe County Sheriff’s Department took Joshua into custody
and delivered him to Mission Hospital at 1:45 p.m. on the same day.
At approximately 3:30 p.m. on 8 May 2013, nursing staff in Mission Hospital’s
Emergency Department noted initial observations that Joshua appeared “Anxious”
with “Impaired Focus/Concentration” and that he “Denies suicidal ideation/homicidal
ideation at present” and “Minimizes problem.” At approximately 4:25 p.m., Mission
Hospital emergency medicine physician James Roberson, M.D. (“Dr. Roberson”)
referred Joshua to the hospital’s psychiatric unit for the required First Examination.
In the psychiatric unit at 4:40 p.m., a Patient/Family Services Consult was
performed by clinical social worker David Weiner, who indicated in Joshua’s hospital
chart that:
[t]he patient is under community petition by his father.
The petition was due to a physical altercation with his
brother wherein the patient tried to strangle him. The
patient denies the severity of this altercation. The
patient’s family reports that the patient is an ex-Marine
and might be struggling with PTSD. Patient to be assessed
by next available PC.
Subsequently on 8 May 2013, Dina Paul (“Paul”), a licensed clinical social
worker and employee of Defendants, conducted an examination of Joshua. [Id.] Paul
1While these statutes do not explicitly term the examinations performed thereunder as “First
Examinations,” both N.C. Gen. Stat. §§ 122C-263 (2015) and 122C-283 (2015) are titled “Duties of law-
enforcement officer; first examination by physician or eligible psychologist.” In the interest of brevity,
a reference to a “First Examination” in this opinion shall refer to an examination under either of these
statutes unless specifically stated otherwise.
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interviewed Joshua and also received statements from several family members,
including Arthur, Banning, and Jacob. Paul was apprised of Joshua’s alcohol and
marijuana use, a drug screen testing positive for cannabinoids, his “Other than
Honorable” discharge from the Marine Corps for drug abuse, his lack of current VA
benefits, and Joshua’s acknowledgment of anger issues since returning from Iraq and
his desire for treatment for PTSD. Paul wrote an Evaluation report to Dr. Roberson
recommending against inpatient commitment for Joshua. Paul’s report concluded
that “[Patient] can benefit from return to home with referral to VA for help with
benefits and therapy. [Patient] in agreement with these recommendations.”
The McArdles allege Paul was not qualified by statute or regulation to perform
the First Examination.
After discussion with Paul, Dr. Roberson signed the North Carolina
Department of Health and Human Services form entitled “Examination and
Recommendation to Determine Necessity for Involuntary Commitment” (the
“Recommendation”), indicating that Joshua did not meet the criteria for inpatient
commitment. The Recommendation stated that Joshua was “able at this time to
contract for safety – denies suicidal ideation and homicidal ideation with no psychotic
symptoms. He has strong social supports, gainful employment. No psychiatric
history.” Rather than indicating that Joshua was mentally ill and/or a substance
abuser and dangerous to himself or others, the Recommendation noted that Joshua
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Opinion of the Court
was “none of the above.” It further stated that “[t]he brothers reported they do not
feel that the patient is a danger to anyone else or himself” but did not mention that
Arthur had expressed the concern to Paul that Joshua was a danger to himself and
others. The Recommendation included the note that Joshua “is in the process of
getting care established at the VA medical center” without addressing Joshua’s
eligibility for such benefits, which is discretionary for one discharged under “Other
than Honorable” conditions. Mission Hospital discharged Joshua at approximately
10:09 p.m. on 8 May 2013, without notifying the McArdles.
Three nights later, at approximately 1:20 a.m. on 11 May 2013, Joshua broke
into the McArdle family residence.2 He shot and severely wounded Banning and
Arthur before fatally shooting himself in the head. When Joshua shot himself, his
body fell on his mother Kimberly, breaking her leg. Sisters Seldon, Hannah, and
Sophie witnessed the shootings and their aftermath. After learning of the incident,
Jacob rushed to Mission Hospital where he witnessed Arthur and Banning being
treated for life-threatening injuries.
The McArdles filed suit on 29 December 2014 alleging negligence, gross
negligence, and negligent infliction of emotional distress arising from the acts and
omissions of Defendants and their employees in the First Examination. Defendants
2 A toxicology report indicated that at the time of Joshua’s death his blood alcohol content was
.103 g/DL.
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filed their answer and motion to dismiss pursuant to Rule 12(b)(6) of the North
Carolina Rules of Civil Procedure on 9 March 2015. The McArdles filed a motion to
amend their complaint on 23 November 2015, and the trial court heard both
Defendants’ motion to dismiss and the McArdles’ motion to amend on 30 November
2015. On 21 January 2016, the trial court entered its order granting the motion to
dismiss and denying the motion to amend as futile, holding that Defendants owed the
McArdles no legal duty. The McArdles timely appealed.
II. Analysis
We review a denial of a motion to amend for abuse of discretion. Martin v.
Hare, 78 N.C. App. 358, 361, 337 S.E.2d 632, 634 (1985). A dismissal under Rule
12(b)(6), by contrast, is reviewed de novo. Holleman v. Aiken, 193 N.C. App. 484, 491,
668 S.E.2d 579, 585 (2008). In applying such a standard, the issue before the
appellate court:
is whether, as a matter of law, the allegations of the
complaint, treated as true, are sufficient to state a claim
upon which relief may be granted under some legal theory.
The complaint must be liberally construed, and the court
should not dismiss the complaint unless it appears beyond
a doubt that the plaintiff could not prove any set of facts to
support his claim which would entitle him to relief.
Block v. County of Person, 141 N.C. App. 273, 277-78, 540 S.E.2d 415, 419 (2000)
(internal citations and quotation marks omitted). However, “conclusions of law or
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unwarranted deductions of fact are not admitted.” Sutton v. Duke, 277 N.C. 94, 98,
176 S.E.2d 161, 163 (1970) (internal quotation marks omitted).
The trial court dismissed the McArdles’ complaint and denied their motion to
amend for futility on the basis that no set of facts or circumstances “would support a
finding that the Defendants owed the Plaintiffs any legally recognized duty . . . .” We
must therefore determine whether Defendants, in conducting their First
Examination of Joshua, owed a legal duty to the McArdles as third parties.3 In
resolving this question, we first review our state’s common law concerning duties to
third parties and then determine whether, under the statutory scheme for
involuntary commitments set forth in N.C. Gen. Stat. §§ 122C-261 and 122C-281 et
seq., liability for the McArdles’ injuries can arise from Defendants’ First Examination.
A. Common Law Liability for Breach of Duty to Third Parties
“In general, there is neither a duty to control the actions of a third party, nor
to protect another from a third party.” Scadden, N.C. App. at 802, 733 S.E.2d at 92
(citing King v. Durham Cnty. Mental Health Developmental Disabilities and
3 The case authorities cited in this opinion use the terms “third persons” or “third parties” to
refer to either the actor whose wrongful acts directly caused injury to a litigant or, alternatively, to
the litigant claiming injury by said wrongful acts. Compare Scadden v. Holt, 222 N.C. App. 799, 802,
733 S.E.2d 90, 92 (2012) (“In general, there is neither a duty to control the actions of a third party, nor
to protect another from a third party.”) with Davis v. N. C. Dept. of Human Resources, 121 N.C. App.
105, 113, 465 S.E.2d 2, 7 (1995) (“Rivers was involuntarily committed into defendant’s custody and it,
therefore, had a duty to exercise reasonable care in the protection of third parties from injury by
Rivers.”). Because both parties in this action adopted the latter usage in their briefs by referring to
Plaintiffs as the third parties in the tort analysis, we do the same except when quoting other courts’
opinions.
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Substance Abuse Auth., 113 N.C. App. 341, 345, 439 S.E.2d 771, 774, disc. rev. denied,
336 N.C. 316, 445 S.E.2d 396 (1994)). There is, however, “an exception to the general
rule . . . where there is a special relationship between the defendant and the third
person which imposes a duty upon the defendant to control the third person’s conduct
. . . .” Hedrick v. Rains, 121 N.C. App. 466, 469, 466 S.E.2d 281, 283-84, aff’d per
curiam, 344 N.C. 729, 477 S.E.2d 171 (1996) (internal citations omitted).
A finding that a special relationship exists and imposes a
duty to control is justified where “(1) the defendant knows
or should know of the third person’s violent propensities
and (2) the defendant has the ability and opportunity to
control the third person at the time of the third person’s
criminal acts.”
Scadden¸ 222 N.C. App. at 803, 733 S.E.2d at 93 (emphasis added in original) (quoting
Stein v. Asheville City Bd. of Educ., 360 N.C. 321, 330, 626 S.E.2d 263, 269 (2006)).
“The ability and opportunity to control must be more than mere physical ability to
control. Rather, it must rise to the level of custody, or legal right to control.” Scadden,
222 N.C. App. at 803, 733 S.E.2d at 93.
This Court has held that a special relationship exists when an individual is
involuntarily committed, negligently released by the defendant, and the negligent
release proximately results in harm to a third-party plaintiff. See, e.g., Pangburn v.
Saad, 73 N.C. App. 336, 338-39, 326 S.E.2d 365, 367-68 (1985) (holding a duty to third
parties existed where plaintiff alleged that defendant negligently released an
involuntarily committed patient who then stabbed plaintiff approximately 20 times);
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Davis, 121 N.C. App. at 113, 465 S.E.2d at 7 (“Rivers was involuntarily committed
into defendant’s custody and it, therefore, had a duty to exercise reasonable care in
the protection of third parties from injury by Rivers.”); Gregory v. Kilbride, 150 N.C.
App. 601, 607, 565 S.E.2d 685, 690 (2002) (“[A]n independent duty arises to protect
third persons from harm by the release of a mental patient who is involuntarily
committed.” (citation omitted)). But we have not held that such a duty to third
parties existed when a voluntarily committed mental patient was released. See King,
113 N.C. App. at 346-47, 439 S.E.2d at 775 (holding that an individual’s voluntary
participation in the Willie M. program, though it obligated the defendants to provide
services, did not confer upon defendants custody over the individual or the ability to
control him absent a “court order”).
In a related line of cases cited favorably by this Court, the Fourth Circuit’s
appellate and district courts have interpreted North Carolina law to hold that this
State does not recognize an affirmative duty on the part of psychiatric care providers
to seek involuntary commitment for individuals. See Currie v. U.S., 836 F.2d 209,
214 (4th Cir. 1987) (“[I]t [is] most unlikely that the North Carolina Supreme Court
would hold that North Carolina’s public policy and its tort law would impose tort
liabilities upon the psychiatrists at the VA hospital for a mistake in not seeking
involuntary commitment.”); Cantrell v. U.S., 735 F. Supp. 670, 673 (E.D.N.C. 1988)
(“North Carolina law d[oes] not impose an affirmative duty on mental health
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professionals to seek an involuntary commitment of a patient.” (citing Currie at 212));
Davis, 121 N.C. App. at 112, 465 S.E.2d at 7 (citing Currie at 212-13); King, 113 N.C.
App. at 347, 439 S.E.2d at 775 (citing Cantrell at 673).
While case law provides guidance as to the duty (or lack thereof) of mental
healthcare providers to third parties prior to the commencement of involuntary
commitment procedures, after involuntary commitment, and where an individual has
been voluntarily committed, the issue of whether a special relationship creating a
duty to third parties exists in the pre-commitment stages of an involuntary
commitment proceeding is one of first impression.
The narrow question before this Court is whether, at the First Examination
prior to a recommendation of involuntary commitment, a defendant examining a
respondent has “custody, or [a] legal right to control” the respondent and therefore
owes a duty to third parties. Scadden, 222 N.C. App. at 803, 733 S.E.2d at 93. The
McArdles argue that “custody” and “legal right to control” are distinct, such that one
party may be vested with the former and another with the latter. Assuming arguendo
that such a distinction exists, we are required to examine our involuntary
commitment statutes alongside the Custody Order in this case to determine whether
“custody, or [a] legal right to control” was ever vested in Defendants. Id. at 803, 733
S.E.2d at 93.
B. Custody, Control, and the Involuntary Commitment Statutory Scheme
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Arthur McArdle instituted Joshua’s involuntary commitment proceeding by
executing an Affidavit and Petition for Involuntary Commitment under both N.C.
Gen. Stat. §§ 122C-261 et seq. (2015) (allowing for the involuntary commitment of the
mentally ill) and N.C. Gen. Stat. §§ 122C-281 et seq. (2015) (allowing for the
involuntary commitment of substance abusers). Under both N.C. Gen. Stat. §§ 122C-
261 and 122C-281, a clerk or magistrate “shall issue an order to a law enforcement
officer or any other person authorized . . . to take the respondent into custody for
examination by a physician or eligible psychologist” upon finding reasonable grounds
that the facts alleged in the affidavit are true and the respondent is probably mentally
ill (under N.C. Gen. Stat. § 122C-261(b)) or a substance abuser (under N.C. Gen. Stat.
122C-281(b)), and that the individual is a danger to himself or others.4 N.C. Gen.
Stat. § 122C-261(b); see also N.C. Gen. Stat. § 122C-281(b) (using virtually identical
language). Upon receipt of such an order under either statute, “a law enforcement
officer or other person designated in the order shall take the respondent into custody
within 24 hours after the order is signed . . . .” N.C. Gen. Stat. § 122C-261(e); see also
N.C. Gen. Stat. § 122C-281(e) (using virtually identical language).
Once a respondent is in the custody of a law enforcement officer or other
properly designated individual, N.C. Gen. Stat. §§ 122C-263(a) and 122C-283(a)
4 We acknowledge that a clerk or magistrate shall also issue a custody order under N.C. Gen.
Stat. § 122C-261(b) upon finding it probable that the individual is mentally ill and needs treatment to
avoid deterioration leading to predictable dangerousness.
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require that the respondent be transported to an “area facility for examination by a
physician or eligible psychologist; if a physician or eligible psychologist is not
available in the area facility, the person designated to provide transportation shall
take the respondent to any physician or eligible psychologist locally available.” N.C.
Gen. Stat.§ 122C-263(a); see also N.C. Gen. Stat. § 122C-283(a) (using virtually
identical language). If neither option is available, “the respondent may be
temporarily detained in an area facility,” and, failing that, “the respondent may be
detained under appropriate supervision in the respondent’s home, in a private
hospital or clinic, in a general hospital, or in a State facility for the mentally ill, but
not in a jail or other penal facility.” N.C. Gen. Stat. § 122C-263(a); see also N.C. Gen.
Stat. § 122C-283(a).5
Upon “present[ation] for examination” by the respondent’s custodian to a
physician or eligible psychologist, N.C. Gen. Stat. §§ 122C-263(c) and 122C-283(c)
require that said physician or eligible psychologist conduct a First Examination. N.C.
Gen. Stat. § 122C-263(c) requires, at a minimum, an examination of the respondent’s
current and prior history of mental illness or retardation, his or her dangerousness
to self or others under N.C. Gen. Stat. § 122C-3(11), his “[a]bility to survive safely
without inpatient commitment,” and his capacity to make decisions concerning his
5 The precise language of N.C. Gen. Stat. § 122C-283(a) (involuntary commitment for
substance abuse) differs from the above-quoted language of N.C. Gen. Stat. § 122C-263(a) (involuntary
commitment for mental illness) only in respect to the pronouns used and the omission of the clause
pertaining to state mental health facilities.
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care. The First Examination for involuntary commitment for substance abuse is
similar, requiring the examiner to review the respondent’s “[c]urrent and previous
substance abuse” and to determine if the respondent is dangerous to himself or
others. N.C. Gen. Stat. § 122C-283(c).
Depending on the evaluation of the necessary factors in a First Examination,
the involuntary commitment statutes dictate certain discrete outcomes: inpatient
commitment, outpatient commitment, or a termination of proceedings and a release
from custody by law enforcement or other properly designated individual. N.C. Gen.
Stat. §§ 122C-263(d) and 122C-283(d). The medical provider conducting a First
Examination must make certain findings, and, depending on the findings, the
statutes compel either commitment (inpatient or outpatient) or release. N.C. Gen.
Stat. §§ 122C-263(d) and 122C-283(d). The statutes provide for no additional
alternative results. An examiner does not have discretion, for example, to release a
respondent to an outpatient provider after making findings that, by statutory
mandate, require inpatient commitment.6
6 The statutes are less constraining on a course of treatment that a district court can order
following examinations recommending involuntary commitment. For example, N.C. Gen. Stat. § 122C-
271(b)(2) states that a court “may order inpatient commitment” for mentally ill individuals who are
dangerous to self or others, and it “may also [order such a respondent] be committed to a combination
of inpatient and outpatient commitment . . . .” (emphasis added). This is in contrast to the statutory
requirement in the same subsection that “[i]f the court does not find that the respondent meets either
of the commitment criteria . . . , the respondent shall be discharged.” N.C. Gen. Stat. § 122C-271(b)(3)
(emphasis added). In cases of involuntary commitment for substance abuse, the trial court does not
actually determine whether inpatient or outpatient treatment is appropriate; rather, if the court
orders commitment pursuant to the statute, N.C. Gen. Stat. § 122C-287, “[t]he area authority or
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If inpatient commitment is compelled by findings made by an examiner, the
respondent is delivered by law enforcement or other properly designated individual
to a “24-hour facility described in [N.C. Gen. Stat. §] 122C-252 [titled ‘Twenty-four
hour facilities for custody and treatment of involuntary clients’].” N.C. Gen. Stat. §§
122C-263(d)(2) and 122C-283(d)(1). When a 24-hour facility is not available or
appropriate for the medical care of a mentally ill respondent, the respondent “may be
temporarily detained under appropriate supervision at the site of the first
examination[;]” if, after seven days of temporary detention, no 24-hour facility
becomes available or such a facility is no longer appropriate, the involuntary
commitment proceedings are terminated. N.C. Gen. Stat. § 122C-263(d)(2). If
proceedings are terminated, a respondent in a mental illness commitment proceeding
is to be returned by law enforcement or an individual properly designated to his home
or that of another consenting person and “the respondent shall be released from
custody.” N.C. Gen. Stat. § 122C-263(d)(3). Upon termination of proceedings in a
substance abuse case, the statute simply states that “the respondent shall be released
. . . .” N.C. Gen. Stat. § 12C-283(d)(2). In such circumstances, no involuntary
physician . . . may prescribe or administer [the commitment] . . . either on an outpatient basis or in a
24-hour facility.” N.C. Gen. Stat. § 122C-290(a). This permissive language is entirely absent from the
statutes concerning First Examinations, which instead employ the mandatory “shall recommend,”
with outcomes dictated by whether the required findings are found in the positive or negative, and
there is no provision allowing for a recommendation of a combination of inpatient and outpatient
commitment in a First Examination. N.C. Gen. Stat. §§ 122C-263(d) and 122C-283(d) (emphasis
added). In a First Examination for substance abuse, the examiner must recommend commitment upon
the finding of certain factors, but in doing so may allow the respondent to “be released or be held at a
24-hour facility pending hearing . . . .” N.C. Gen. Stat. § 122C-283(d)(1).
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commitment occurs. Waldron v. Batten, 191 N.C. App. 237, 241, 662 S.E.2d 568, 570
(2008) (holding that where a First Examination is administered to a respondent and
no commitment is recommended, no involuntary commitment occurs).
The involuntary commitment statutes positively grant custody at the First
Examination stage only to law enforcement or another properly designated individual
by order of the clerk pursuant to N.C. Gen. Stat. §§ 122C-261(b) and 122C-281(b).
Under those statutes, “the clerk or magistrate shall issue an order to a law
enforcement officer or any other person authorized under G.S. 122C-251 to take the
respondent into custody for examination . . . .” N.C. Gen. Stat. § 122C-261(b); see also
N.C. Gen. Stat. § 122C-281(b). Taking the McArdles’ allegations as true, the Custody
Order issued in this case did exactly that; it directed the Buncombe County Sheriff’s
Department to “take [Joshua] into custody within 24 hours after this order is signed
and take [him] for examination by a person authorized by law to conduct the
examination.” (internal quotation marks omitted).
Following issuance of such an order and “[w]ithout unnecessary delay after
assuming custody, the law enforcement officer . . . shall take the respondent . . . for
examination by a physician or eligible psychologist . . . .” N.C. Gen. Stat. § 122C-
263(a); see also N.C. Gen. Stat. § 122C-283(a).7 No language in these statutes shifts
7 We note that these statutes impose the duty on law enforcement (or another properly
designated individual) to deliver the individual to a properly qualified examiner or, failing that, to
temporarily detain him until such delivery can be accomplished. N.C. Gen. Stat. §§ 122C-263(a) and
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custody from law enforcement to the examiner (or anyone else) in a First
Examination; indeed, the First Examination in a mental illness proceeding may even
be conducted via “telemedicine” outside the examiner’s physical presence. N.C. Gen.
Stat. § 122C-263(c). As far as the import of the location of the First Examination is
concerned, we note that the involuntary commitment statutes have specifically
delineated between “24-hour facilities . . . for the custody and treatment of
involuntary clients[,]” N.C. Gen. Stat. § 122C-252 (2015) (emphasis added), and other
locations for evaluations and examinations. Notably, there is no requirement that
the First Examination be conducted at such a facility.8
A plain reading of the statutes’ language demonstrates that, following a First
Examination, custody continues with law enforcement until the respondent is, in
122C-283(a). Indeed, the proposed amended complaint in this case specifically alleges that the
Custody Order ordered the Buncombe County Sheriff’s Office to “take [Joshua] into custody within 24
hours after this order is signed and take the respondent for examination by a person authorized by law
to conduct the examination.” (internal quotation marks omitted) (emphasis added). It also alleges
that, upon delivery of an involuntary commitment respondent to Mission Hospital, a Buncombe
County Sheriff’s deputy typically fills out a Return of Service section in the Findings and Custody
Order acknowledging that “ ‘the respondent was presented to an authorized examiner’ and providing
the . . . Name of Examiner . . . .” (emphasis added). The proposed amended complaint further alleges
that the Buncombe County Sheriff’s deputy filled out this form when he dropped off Joshua at 1:45
p.m. and left, but that Joshua was not referred to the psychiatric unit until 4:25 p.m. Per the statute
and as alleged in the proposed amended complaint, the Buncombe County Sheriff’s Department failed
to deliver Joshua to a qualified examiner or to detain him until such an examiner was available. We
do not consider the Buncombe County Sheriff’s Department’s potential liability, however, as it is not
a party to this action.
8 The statutes contemplate that the First Examination can occur in a host of locations that
may or may not be capable of assuming custody, including “in the respondent’s home, in a private
hospital or a clinic, in a general hospital, or in a State facility for the mentally ill, but not in a jail or
other penal facility.” N.C. Gen. Stat. § 122C-263(a); see also N.C. Gen. Stat. § 122C-283(a) (providing
similar locations).
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cases recommending commitment, transferred to a 24-hour facility “for the custody
and treatment of involuntary clients[,]” N.C. Gen. Stat. § 122C-252, or, in cases where
commitment is not recommended, returned to a residence and “released from
custody.” N.C. Gen. Stat. §§ 122C-263(d); see also N.C. Gen. Stat. § 122C-283(d). It
necessarily follows that the Buncombe County Sheriff’s Department assumed custody
of Joshua pursuant to the Custody Order and the applicable statutes until he was
delivered to a 24-hour facility on a recommendation of commitment or, in the
alternative, transported to his home or the home of a consenting individual following
the termination of the proceeding. Because Defendants did not assume custody of
Joshua under the statutory scheme, it cannot serve as the basis of a special
relationship creating a duty to third parties. See, e.g., Scadden, 222 N.C. App. at 803,
733 S.E.2d at 93 (noting the requirement of “custody, or legal right to control.”).
This reading of the statutes comports with our legislature’s enactment of
Session Law 2013-114 , which specifically granted facilities in Ashe, Cumberland,
and Wilkes Counties the ability to detain, pursue, and return individuals in the
course of a First Examination in the place of law enforcement. 2013 N.C. Sess. Laws
235-36. Presuming as we must that our legislature passed Session Law 2013-114
with full knowledge of the involuntary commitment scheme, Dickson v. Rucho, 366
N.C. 332, 341, 737 S.E.2d 362, 369 (2013), and acknowledging the limitation of its
effect to only three counties, its enactment confirms our conclusion that the
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Opinion of the Court
legislature has not seen fit, as a general matter, to confer custody of an involuntary
commitment respondent on anyone other than law enforcement or other person
properly designated by the clerk or magistrate prior to and during a First
Examination.
Beyond custody, the McArdles assert several well-stated arguments that the
involuntary commitment scheme bestowed upon Defendants a legal right to control
Joshua irrespective of custody. Assuming arguendo that there is a distinction
between “custody” and “legal right to control,” we nonetheless ultimately find the
McArdles’ arguments unavailing.
The McArdles argue that because “Defendants had the legal right to: (1) Retain
Joshua in their 24-hour facility [by recommending involuntary commitment for
mental illness] . . . ; and/or (2) Retain Joshua in their 24-hour facility [by
recommending involuntary commitment for substance abuse,]” they had the legal
right to control Joshua, creating a special relationship subjecting Defendants to
liability to third persons. The McArdles argue that Defendants therefore “ha[d] the
legal right to mandate that Joshua continue to remain restrained, [and] the
corresponding positive duty to [decide] under [N.C. Gen. Stat.] § 122C-263(d) whether
to further restrain or release.” In advocating for the existence of the positive duty
and legal right to mandate Joshua’s restraint, the McArdles rightly note that the
compulsory “shall” verbiage employed in N.C. Gen. Stat. § 122C-263(d) concerning
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Opinion of the Court
the required findings in a First Examination is “the classic language of duty.” See
McLean v. Sale, 38 N.C. App. 520, 523, 248 S.E.2d 372, 374 (1978) (holding that the
use of “shall” in an earlier incarnation of North Carolina’s involuntary commitment
statute “imposes a positive duty on the defendant to make the examination . . . .”).
However, we hold that the nature of the duty imposed, in light of the particulars of
the statutory scheme, is insufficient to impose a “special relationship” between
Defendants and the McArdles.
N.C. Gen. Stat. § 122C-263(d) imposes a statutory duty on Defendants, insofar
as the examiner in a First Examination “shall make the following determinations . .
. .” The duty’s mere existence, however, does not mean that it extends beyond Joshua
to third parties.
This Court has previously held that “N.C.G.S. § 122C-263 and the related
involuntary commitment statutes are not public safety statutes.” Kilbride, 150 N.C.
App. at 610-11, 565 S.E.2d at 692. The duties provided in these statutes are intended
to protect the due process rights of the respondent, not the safety of the public. Id. at
610-11, 565 S.E.2d at 692 (“The primary purpose of an involuntary commitment
proceeding is to protect the person who, after due process, has been found to be both
mentally ill and imminently dangerous . . . . The purpose of the statutes is . . . to
protect the rights of the individual who is the subject of the involuntary commitment
proceedings.” (emphasis added) (internal citations omitted)).
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Opinion of the Court
Defendants had no right to control Joshua at the time of the alleged breach of
duty to Joshua because it occurred prior to his admission to Defendants’ care. The
McArdles contend that the examiner’s statutory authority to make findings about an
involuntary commitment petition respondent means “[t]he power to release or not
release is the first examiner’s[.]” But the examiner has no discretion whether or not
to release a respondent. It is the statutes that dictate the result on the basis of the
examiner’s findings, and the examiner is not authorized by law to deviate from those
statutorily-imposed results. Nor may the examiner assume control over the
respondent. In short, a right or duty to make a determination that may result in
assuming a legal right to control is distinct from the legal right to control itself, and
Defendants “ ‘had no legal right to mandate’ [Joshua’s] behavior” because the
statutory mandate for commitment was never triggered. Scadden, 222 N.C. App. at
805-06, 733 S.E.2d at 94 (quoting King, 113 N.C. App. at 347, 439 S.E.2d at 775).9
While it is true that “[i]t is the finding by the physician . . . that directly results in
the restraint of respondent[,]” McLean, 38 N.C. App. at 523, the examiner at a First
9 A similar line was drawn in Cantrell. 735 F. Supp. at 673. There, the federal district court
noted that although a mental health provider may, under N.C. Gen. Stat. § 122C-212(b), hold a
voluntarily committed patient for 72 hours following a request for discharge, this ability did not rise
to level of control sufficient to create a special relationship imposing liability to third parties. Id. at
673. Instead, the provider’s ability to hold an individual for 72 hours merely “enables the institution
to attempt to gain control which it does not have over the patient by seeking involuntary commitment.”
Id. at 673 (emphasis added).
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Opinion of the Court
Examination is empowered only to make certain findings, and it is only after specific
findings are made that control is exercised.10
Application of our law to the McArdles’ logic aptly demonstrates this
distinction. N.C. Gen. Stat. § 122C-262(a) provides: “Anyone . . . who has knowledge
of an individual who is subject to inpatient commitment . . . and who requires
immediate hospitalization to prevent harm to self or others, may transport the
individual directly to an area facility or other place [for a First Examination] . . . .”
N.C. Gen. Stat. § 122C-262(a) (emphasis added). A person may take control of such
a person absent an order for custody under N.C. Gen. Stat. § 122C-261. See In re
Woodie, 116 N.C. App. 425, 429, 448 S.E.2d 142, 144 (1994) (holding there was no
error in an involuntary commitment action where police transported an individual to
a hospital for examination by a physician under N.C. Gen. Stat. § 122C-262 “without
having a petition for an order to take appellant into custody in the court file as
required by [N.C. Gen. Stat.] § 122C-261 (1993).”). Thus, under particular
circumstances, any member of the public may have the statutorily-provided option of
exercising a degree of control over a person that is equivalent to, and otherwise
reserved for, a custody order under the involuntary commitment statutes. If we were
to hold, as the McArdles’ logic dictates, that “custody, or [a] legal right to control[,]”
10 We note that the pleadings in this matter also identify this distinction: the specific factual
allegations of negligence in the McArdles’ original and amended complaints pertain to actions or
omissions in the First Examination itself rather than in the exercise of any positive control over
Joshua.
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Scadden, 222 N.C. App. at 803, 733 S.E.2d at 93, is equivalent to “the legal ability”
to assume the mantle of a legal right to control, then any person electing not to
transport an individual consistent with N.C. Gen. Stat. § 122C-262(a) would fall
within the “special relationship” giving rise to liability to others, if the person, per
the very terms of N.C. Gen. Stat. § 122C-262, knew of the individual’s “violent
propensities and . . . ha[d] the ability and opportunity to control” the individual.
Stein, 360 N.C. at 330, 626 S.E.2d at 269. Such a holding would upend the general
rule that “there is neither a duty to control the actions of a third party, nor to protect
another from a third party.” Scadden, 222 N.C. App. at 802, 733 S.E.2d at 92; see
also Currie, 836 F.2d at 214 (“[I]t [is] most unlikely that the North Carolina Supreme
Court would hold that North Carolina’s public policy and its tort law would impose
tort liabilities upon the psychiatrists at the VA hospital for a mistake in not seeking
involuntary commitment.”) and Cantrell, 735 F. Supp. at 672-73 (“North Carolina law
d[oes] not impose an affirmative duty on mental health professionals to seek an
involuntary commitment of a patient.” (citing Currie, 836 F.2d at 212)). We therefore
decline to adopt the holding advocated by the McArdles to prevent “the exception
[from] swallow[ing] the rule . . . .” Scadden, 222 N.C. App. at 803, 733 S.E.2d at 93.
The exception creating liability to claims by third parties in the involuntary
commitment context remains unchanged: “[W]here a person has been involuntarily
committed . . . there is a duty on the institution to exercise control over the patient .
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Opinion of the Court
. . .” Davis, 121 N.C. App. at 112, 465 S.E.2d at 7 (emphasis added); see also King,
113 N.C. App. at 346, 439 S.E.2d at 774 (noting the exception applies in “institution-
involuntarily committed mental patient” cases).
For the same reason that we affirm the trial court’s conclusion that Defendants
owed no duty to the McArdles, we also affirm the trial court’s denial of the McArdles’
motion to amend the complaint, because the complaint could not be amended to state
a valid cause of action against Defendants.
III. Conclusion
The McArdles’ original and proposed amended complaints chronicle a terrible
series of events and profound suffering. Even so, our sympathy does not empower us
to step beyond the confines of the law: “Absent legal grounds for visiting civil liability
on defendant[s], our courts cannot offer plaintiffs the requested remedy.” Stein, 360
N.C. at 325, 626 S.E.2d at 266. Because we hold that Defendants did not have custody
of or a legal right to control Joshua when conducting their First Examination, no
special relationship was created imposing liability, and the trial court did not abuse
its discretion in denying the McArdles’ motion to amend or commit reversible error
in dismissing their complaint.
AFFIRMED.
Judges CALABRIA and ZACHARY concur.
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