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Bryson v. Banner Health System (04/23/2004) sp-5799
Bryson v. Banner Health System (04/23/2004) sp-5799
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
DIANA BRYSON, )
) Supreme Court No. S-
10653/10673
Petitioner/Cross-Respondent, )
) Superior Court No.
v. ) 4FA-00-2611 CI
)
BANNER HEALTH SYSTEM d/b/a )
FAIRBANKS MEMORIAL ) O P I N I O N
HOSPITAL d/b/a FAMILY )
RECOVERY CENTER and GUY ) [No. 5799 - April 23, 2004]
PATTERSON, )
)
Respondents/Cross-Petitioners. )
)
Petition for Review from the Superior Court
of the State of Alaska, Fourth Judicial
District, Fairbanks, Ralph R. Beistline,
Judge, and Jane F. Kauvar, Judge pro tem.
Appearances: Kenneth P. Ringstad, Paskvan,
Ringstad, Parrish, P.C., Fairbanks, for
Petitioner/Cross-Respondent. Howard A. Lazar
and Ann B. Black, Delaney, Wiles, Hayes,
Gerety, Ellis & Young, Inc., Anchorage, for
Respondents/ Cross-Petitioners.
Before: Bryner, Chief Justice, Matthews,
Fabe, and Carpeneti, Justices. [Eastaugh,
Justice, not participating.]
PER CURIAM.
I. INTRODUCTION
The Family Recovery Center placed Diana Bryson and
Laurence Kompkoff in the same continuing care substance abuse
treatment group. According to Bryson, as part of the treatment,
the Center encouraged all members of the group to contact and
assist each other outside of the group setting. The Center knew
that Kompkoff had an extensive criminal history of alcohol-
related crimes of violence, including sexual assaults. Kompkoff
relapsed into drinking while being treated. He called Bryson for
a ride, attempted to rape her, and shot her in the ensuing
struggle. Bryson sued the Center, alleging that it negligently
failed to warn and protect her against harm from Kompkoff. The
superior court ruled on summary judgment that the Center owed
Bryson an actionable duty of due care to protect her from harm in
the course of her treatment - including foreseeable harm by other
patients. Both parties petitioned for review, contesting the
superior court's ruling on the existence and scope of the
Center's duty. We granted review, and now affirm the superior
court's decision.
II. FACTS AND PROCEEDINGS1
The Family Recovery Center provides out-patient
substance abuse treatment in Fairbanks.2 The Center placed both
Diana Bryson and Laurence Kompkoff in its continuing care self-
help group after each had independently completed an intensive
substance abuse program. As part of their admission to the
Center, each signed documents acknowledging that their records
were confidential and that unauthorized disclosure was a crime
under federal law.
When Kompkoff enrolled in the Center's program, he had
an extensive criminal history involving alcohol abuse and sexual
violence:
C He was first convicted of felony assault with a
dangerous weapon in 1973 for stabbing another person multiple
times. Kompkoff was incarcerated for the offense until February
1976.
C In July 1976, about five months after his release,
Kompkoff slashed his step-father's neck with a knife. He was
again convicted of felony assault with a dangerous weapon, but
received only five years of probation on the condition that he
abstain from alcohol and complete substance abuse treatment.
C In April 1978 Kompkoff violated his probation by
drinking and possessing a butcher knife.
C In July 1979 Kompkoff broke into the home of a woman
he had met at an Alcoholics Anonymous meeting and raped her.
Upon conviction, Kompkoff was sentenced to fifteen years in
prison.3 He remained incarcerated until August 1989, and then
resided at halfway houses until August of 1990, when he was
released on parole.
C Three months later, in December 1990, Kompkoff broke
into a neighboring woman's home, put a knife to her throat, and
threatened to kill her. Kompkoff was convicted of first-degree
burglary for this offense and was sentenced to serve ten years in
prison, with two-and-a-half years suspended. After serving the
unsuspended portion of his sentence, he was released on probation
in December 1995.
C Over the next four years, Kompkoff violated the
conditions of his probation on at least three separate occasions.
Kompkoff decided to enroll in the Center's program in
September 1999 at the encouragement of his probation officer,
after he was arrested for consuming alcohol and driving while
intoxicated - his third probation violation. At a probation
revocation hearing in November 1999, his probation officer
reported that Kompkoff was in the final stages of his substance
abuse treatment at the Center and seemed to be doing well. Based
on this report, the superior court revoked only a short period of
Kompkoff's total suspended term and allowed him to resume
probation on the condition that he complete the Center's
outpatient continuing care program.
The Center knew of Kompkoff's criminal history when it
placed him together with Bryson in the same self-help group, but
did not consider his history to rule out the placement because
Kompkoff had successfully completed the Center's intensive
treatment program. In admitting Kompkoff to the program, the
Center failed to warn Bryson or any other group members that he
might be dangerous if he resumed drinking; nor did the Center
take any other precautions to protect group members on account of
Kompkoff's history of relapse and violence.
As part of its group treatment program, the Center
encouraged all members of the group - including Kompkoff - to
rely on other group members for help and support between group
meetings. To assist the group in maintaining contact outside of
the group setting, the Center compiled and distributed a list of
members and their telephone numbers.
Bryson and Kompkoff participated in three self-help
group sessions together: on December 28, 1999, December 30, 1999,
and January 4, 2000. On January 10 or 11, Kompkoff's probation
officer called and warned the Center of reports that Kompkoff
might be drinking. The Center made no attempt to alert its group
members concerning these reports.
On January 11 Kompkoff called Bryson for a ride to the
bank and the credit union. Bryson agreed and arranged to pick
him up at a local grocery store; when she arrived, Kompkoff asked
if she would take him to his apartment first, so that he could
make some phone calls. At Kompkoff's insistence, Bryson
accompanied him into his apartment. Kompkoff walked into his
bedroom; Bryson stayed behind. She noticed a large bottle of
vodka on a table; just as she saw the bottle, Kompkoff stepped
out of the bedroom, armed with a gun. He ordered Bryson to get
in the bedroom and take her clothes off. When she failed to
comply, Kompkoff grabbed her by the jacket, threw her onto the
bedroom floor, and struggled to remove her pants. As Bryson
fought Kompkoff for control of the gun, it fired; the bullet
struck her hand, severing a finger. Bryson then managed to
escape.
As a result of this incident, Bryson sued Kompkoff and
the Center for damages. In her claim against the Center, she
alleged negligence in failing to warn her that Kompkoff was
dangerous and in failing to protect her from his assaultive
behavior.
The Center moved for summary judgment, arguing that it
had no duty to protect or warn Bryson about Kompkoff.
Specifically, the Center maintained that federal regulations
governing the confidentiality of its treatment records precluded
it from divulging Kompkoff's criminal history, thus leaving the
Center with no duty to warn other patients.
In response to the Center's motion, Bryson cross-moved
for summary judgment on the issue of duty. Advancing alternative
legal theories, Bryson argued that, under the facts alleged in
her complaint, the Center had an actionable duty to warn her of
and protect her from Kompkoff.
The superior court partly granted and partly denied the
parties' cross-motions. As a threshold matter, the court
recognized that federal and Alaska law barred the Center from
disclosing Kompkoff's treatment records. The court also
recognized that neither the Center's knowledge of Kompkoff's
background nor its relationship to Kompkoff as his treatment
provider gave rise to a duty requiring the Center to control his
conduct or protect the general public against his dangerous
propensities; absent evidence that Kompkoff posed a specific
threat to Bryson, the court found no actionable duty arising from
these factors.
After ruling for the Center on these points, the
superior court proceeded to consider the Center's relationship
with Bryson as a potential source of duty. The court determined
that Bryson's status as the Center's patient created a special
relationship between Bryson and the Center - a relationship that
required the Center to exercise due care to avoid exposing Bryson
to an unreasonable risk of harm in the treatment setting -
including an unreasonable risk of harm from other patients.
Because the court believed that it might have been possible for
the Center to have taken additional steps to protect Bryson from
Kompkoff without violating its statutory duty to maintain the
confidentiality of his records, the court reasoned that a triable
question of fact existed as to the Center's compliance with this
relation-specific duty toward Bryson. On this limited basis, the
superior court decided the issue of duty in Bryson's favor,
concluding:
Alaska law and federal law prohibit the
kinds of warnings that Bryson claims were
owed to her. There was, however, a "special
relationship" formed between the Defendants
and Bryson. The Defendants did not have a
duty to warn based on a general knowledge of
Kompkoff's criminal history because [the
Center was not] "on notice" that Kompkoff
posed a specific threat to anyone at the time
of the assault on Bryson. However, this
special relationship between Defendants and
Bryson, combined with Defendants' inability
to disclose confidential information
regarding patients to other patients, created
a limited duty on Defendants' part to
reasonably safeguard patients from one
another such that patients did not become
particularly vulnerable to other patients by
virtue of their participation in the program.
By encouraging interaction outside the
residential treatment setting, [the Center]
had a duty to establish reasonable guidelines
and general warnings that may have prevented
this incident.
Both parties petitioned for interlocutory review - the
Center insisting that the superior court erred in declining to
grant its motion for summary judgment completely, and Bryson
arguing that the court erred in unduly restricting the scope of
the Center's duty. We granted review and ordered full briefing.
III. DISCUSSION
The Center argues that the superior court erred in
finding that it had an actionable duty to protect Bryson from
danger. Because federal and state confidentiality law prohibited
the Center from disclosing Kompkoff's criminal history, it
reasons that no duty to warn Bryson could have arisen. In
contrast, Bryson faults the superior court for unduly limiting
the Center's actionable duty. Pointing to language in the
summary judgment order suggesting that the Center owed Bryson
only "a limited duty" and that this duty only required the Center
"to establish reasonable guidelines and general warnings," Bryson
maintains that the court too narrowly defined the protective
measures that could potentially fall within the Center's duty to
use due care in providing treatment. We separately address the
parties' divergent positions concerning the duty's existence and
its scope.4
A. Existence of the Center's Duty Toward Bryson
The superior court noted that because federal and
Alaska laws obliged the Center to keep the treatment records of
its patients confidential,5 no duty to warn or protect Bryson
from Kompkoff arose under their provisions. Relying on this
finding, the Center insists that the confidentiality statutes
shielded it from liability by precluding any actionable duty from
arising. We find the Center's argument unpersuasive. As the
superior court recognized, the Center could not be held
accountable for failing to take protective actions that would
have violated applicable confidentiality laws. Yet nothing in
these laws expressly or implicitly absolves health care providers
of the responsibility for protecting their patients by reasonably
available means that comply with the laws' requirements. If the
Center could have taken legally permissible measures to protect
Bryson, the confidentiality statutes would not rule out an
actionable duty.
The superior court concluded that such measures did
potentially exist, finding that Bryson raised triable questions
of fact regarding the availability of lawful steps that the
Center might have taken to protect her from unreasonable risk in
the course of her group treatment with Kompkoff. The record, in
our view, supports this conclusion. The critical question, then,
is whether the Center actually owed Bryson an actionable duty.
To determine whether an actionable duty exists in a
given case we look first for statutes, rules, or existing
precedent creating a duty.6 The superior court found no
actionable duty arising by statute but concluded that the Center
had a duty to use due care to protect Bryson under our existing
precedent, which has followed the approach taken by the
Restatement (Second) of Torts.7
In the absence of a special relationship, the
Restatement ordinarily recognizes no duty requiring one person to
protect another from a third party.8 But 315 of the
Restatement states that when "a defendant stands in a special
relationship to either the dangerous person or the potential
victim, the defendant is required to control the dangerous person
or warn or otherwise protect the victim."9 Restatement 323
and 299A supplement this provision. Section 323 broadly
describes the kind of special relationship at issue here,
providing that one who undertakes "to render services to another
which he should recognize as necessary for the protection of the
other's person or things" may be held liable for failing to
exercise reasonable care in performing such services.10 Section
299A more narrowly provides that "one who undertakes to render
services in the practice of a profession or trade is required to
exercise the skill and knowledge normally possessed by members of
that profession or trade in good standing in similar
communities."11 These provisions reflect the Restatement's
overarching view that "undertakings can create a duty of care"
and that "one who voluntarily assumes a duty must then perform
that duty with reasonable care."12
The superior court reasoned that, by undertaking to
provide substance abuse treatment to Bryson, the Center formed a
special relationship requiring it to take reasonable care to
protect Bryson from danger in the course of her treatment -
including foreseeable danger from her fellow patients. We agree.
The Center undertook to provide substance abuse treatment to
Bryson, and by doing so it assumed a duty to treat her with
reasonable care. We thus affirm the superior court's conclusion
that the Center owed Bryson an actionable duty of due care.
B. Scope of the Center's Duty Toward Bryson
Bryson challenges the superior court's order defining
the Center's duty of due care, arguing that it too narrowly
limits the duty's scope. Specifically, Bryson points to the
order's concluding paragraph, which describes the Center's duty
as a "limited" one requiring the Center to give guidelines and
warnings:
[The] special relationship between Defendants
and Bryson, combined with Defendants'
inability to disclose confidential
information regarding patients to other
patients, created a limited duty on
Defendants' part to reasonably safeguard
patients from one another such that patients
did not become particularly vulnerable to
other patients by virtue of their
participation in the program. By encouraging
interaction outside the residential treatment
setting, [the Center] had a duty to establish
reasonable guidelines and general warnings
that may have prevented this incident.
Bryson reads the court's concluding reference to
guidelines and warnings as defining the outer limits of the
Center's duty. She maintains that this definition is too
restrictive, insisting the Center's duty required it do more than
issue "guidelines and general warnings" if other, more effective
protective measures were reasonably available. But Bryson's
exclusive focus on the summary judgment order's closing remarks
overlooks the main body of the order, where the superior court
addressed the Center's duty in considerably greater detail:
Plaintiff's exposure to Kompkoff was
directly related to Plaintiff's treatment by
[the Center]. There was a special
relationship between Plaintiff and [the
Center] by virtue of this treatment
relationship. Arguably, Plaintiff's
association with Kompkoff away from the
treatment facility was due to the
encouragement of [the Center]. If [the
Center] encourages its patients to be
available to one another outside of the
treatment facility, there is a commensurate
duty to provide reasonable safeguard or
guidelines for its patients when these
contacts occur. These might include cautions
or restrictions with regard to the public or
private places for such meetings,
restrictions as to meetings between the
sexes, and reminders that the criminal
records of co-patients cannot be disclosed,
such that traditional safeguards for one's
safety should not be set aside when dealing
with other members of the treatment group.
The Court accepts [the Center's]
contention that it cannot disclose
confidential records or be accountable for
not incarcerating Kompkoff. The question for
the jury in this case seems to be whether it
was reasonable for [the Center] to encourage
contact between patients outside of treatment
given its inability to disclose patient
history and, if so, whether there were
reasonable steps [the Center] should have
taken, given its statutory limitations, that
would have prevented this incident.
Reading the superior court's closing remarks in light
of the more extensive discussion of duty contained in the body of
its decision, we understand the court's concluding reference to
guidelines and general warnings to be illustrative, not
exclusive. As the superior court indicated in the body of its
decision, the Center has a duty "to provide reasonable
safeguard[s] or guidelines," and these safeguards or guidelines
"might include cautions or restrictions" on contact outside the
treatment center. (Emphasis added.) These statements demonstrate
that the superior court did not mean to narrowly confine the
Center's duty to one of issuing guidelines and general warnings.
And we see nothing else in the decision below suggesting that the
superior court would preclude Bryson from establishing her claim
by proving that the Center negligently failed to take other kinds
of precautions. In fact, the body of the decision describes a
broader reach for the duty, generally defining the ultimate
questions at issue as "whether it was reasonable for [the Center]
to encourage contact between patients outside of treatment given
its inability to disclose patient history and, if so, whether
there were reasonable steps [the Center] should have taken, given
its statutory limitations, that would have prevented this
incident."
As we interpret it, then, the superior court's
definition of the privilege comports with the Restatement's
principles. While recognizing that the Center's duty could not
require it to take any unlawful actions, the court ruled that the
Center owed Bryson a duty of reasonable care to take lawful steps
to ensure Bryson's safety. Under the Restatement, the Center's
duty of reasonable care must be measured in terms of the skill
and knowledge normally used by treatment providers under similar
circumstance.13 In other words, the Center had a duty to act as a
reasonable treatment provider under the circumstances. Because
this duty arose from the Center's special treatment relationship
with Bryson, it is necessarily limited to the treatment context:
the Center owed Bryson no duty to protect her from others except
in connection with the Center's treatment of Bryson. And the
scope of the duty here is also necessarily confined by the
Center's obligation to obey applicable confidentiality laws. But
under the circumstances at hand, as the superior court properly
recognized, whether the Center breached its duty of care by
taking or failing to take any particular action presents a
question of fact, not a question of duty.14
IV. CONCLUSION
We AFFIRM the superior court's summary judgment order.
_______________________________
1Because this case requires us to review a summary judgment order
limiting the scope of the Center's actionable duty under the
facts advanced by Bryson, we describe the facts in the light most
favorable to Bryson.
2The Center operates as the chemical dependency unit of the
Fairbanks Memorial Hospital, which is owned and operated by
Banner Health Systems. Guy Patterson was an employee of the
Center during the time at issue in this case. Our opinion refers
to Patterson and these entities collectively as "the Center."
3The court of appeals affirmed Kompkoff's fifteen-year sentence
in Kompkoff v. State, 626 P.2d 1091 (Alaska App. 1981).
4We review summary judgment rulings de novo to determine whether
any genuine issues of material fact exist and whether the moving
party is entitled to judgment as a matter of law. Whether a
party has a duty of care and, if so, the nature and scope of that
duty are questions of law that we also review de novo. See,
e.g., State v. Sandsness, 72 P.3d 299, 301 (Alaska 2003); Dore v.
City of Fairbanks, 31 P.3d 788, 790 (Alaska 2001).
5See 42 U.S.C. 290 dd-2(a) (2003) ("Records of the identity,
diagnosis, prognosis, or treatment of any patient which are
maintained in connection with the performance of any program or
activity relating to substance abuse education, prevention,
training, treatment, rehabilitation, or research . . . shall
. . . be confidential and be disclosed only [as permitted under
this section]."); AS 47.37.210 ("[T]he registration and other
records of treatment facilities shall remain confidential and are
privileged to the patient.").
6Dore, 31 P.3d at 792; Wongittilin v. State, 36 P.3d 678, 681
(Alaska 2001).
7See, e.g., P.G. and R.G. v. State, 4 P.3d 326 (Alaska 2000);
R.E. v. State, 878 P.2d 1341 (Alaska 1994); Division of Corr.,
Dep't of Health & Soc. Servs. v. Neakok, 721 P.2d 1126 (Alaska
1986).
82 Dan B. Dobbs, The Law of Torts 314, at 853 (2001);
Restatement (Second) of Torts 314 ("The fact that the actor
realizes or should realize that action on his part is necessary
for another's aid or protection does not of itself impose upon
him a duty to take such action.") & cmt. a (recognizing an
exception to the general rule based on special relationship with
perpetrator or victim) (1965). We have previously looked to the
Restatement to aid us in our determination of whether a defendant
has an actionable duty. See Dore, 31 P.3d at 793 & n.32 (cases
cited).
9See Neakok, 721 P.2d at 1126.
10Restatement (Second) of Torts 323 (1965) provides:
One who undertakes, gratuitously or for
consideration, to render services to another
which he should recognize as necessary for
the protection of the other's person or
things, is subject to liability to the other
for physical harm resulting from his failure
to exercise reasonable care to perform his
undertaking, if
(a) his failure to exercise such care
increases the risk of such harm, or
(b) the harm is suffered because of the
other's reliance upon the undertaking.
11Restatement (Second) of Torts 299A (1965); see also
Restatement (Second) of Torts 321 (1965) (stating that where
the actor knew or should have known that he or she created a risk
to another and had an opportunity to minimize the risk before the
harm actually occurred, then he or she owed a duty of reasonable
care to attempt to avoid the future harm); W. Page Keeton,
Prosser and Keeton on Torts 33, at 203 (5th ed. 1984) (stating
that in some situations, "the defendant will be held liable
because his affirmative conduct has greatly increased the risk of
harm to the plaintiff through the criminal acts of others").
12See Dobbs, supra note 8, 319, at 860-61 ("The general rule
that undertakings can create a duty of care is often expressed by
saying one who voluntarily assumes a duty must then perform that
duty with reasonable care.").
13See id. 319, at 860-61.
14Because the case before us falls within the class of cases
covered by existing precedent and the Restatement framework, we
need not consider the issue of duty under the policy analysis
adopted in D.S.W. v. Fairbanks North Star Borough School
District, 628 P.2d 554 (Alaska 1981).
