Is the University of Colorado Potentially Liable to Holmes’s Victims?

Today we are going to revisit the James Eaton Holmes case and take a look at the potential civil liability of the University of Colorado to the families of the 12 people he allegedly shot and killed and the wounded survivors of the mass shooting in Aurora, CO at the midnight opening of the Batman premiere.

Holmes is alleged to have appeared in the theater shortly after the film began dressed as Batman’s arch enemy, the Joker, complete with bright red and orange hair. The people in the audience assumed they were watching a publicity stunt, but they soon realized they were mistaken as Holmes produced a fully automatic AR-15 together with several handguns and began shooting into the audience killing 12 people and wounding 58.

Police arrested Holmes in the theater parking lot without resistance. He has reportedly refused to give a statement, although leaks out of the jail where he is being held indicate that he claims not to recall the incident.

On Monday prosecutors charged him with 24 counts of first degree murder and 116 counts of assault. The prosecutors have stated that they are considering whether to seek the death penalty, if he is convicted.

No one appears to dispute that Holmes is mentally ill and there is a good possibility that he may not be competent to stand trial, assuming he has no recollection of the incident and cannot assist his lawyers to represent him.

Prior to the incident, Holmes withdrew from the neuroscience doctoral program at the University of Colorado School of Medicine. His decision to withdraw was apparently related to the recent onset of schizophrenia. He was under the care of Dr. Lynn Fenton, a psychiatrist on the medical school faculty specializing in the treatment of schizophrenia. She is also in charge of the Student Mental Health Clinic at the University of Colorado.

Reuters is reporting today:

Dr. Lynne Fenton notified a so-called threat-assessment team at the University of Colorado, Denver, in early June that she was alarmed by the behavior of James Holmes, but no further action was taken, the Denver Post reported, citing an anonymous source. Reuters could not immediately confirm the report.

If this report is confirmed, the University of Colorado may be liable to the families of the 12 homicide victims for their wrongful deaths and to the 58 shooting victims who survived the rampage.

In Tarasoff v. Regents of the University of California, 551 P.2d 334 (1976), the California Supreme Court created a new cause of action in tort for the negligent failure of a mental health professional to notify the police and potential victim regarding a threat to harm or kill communicated by a patient to the mental health professional. Before Tarasoff, mental health professionals were prohibited by the therapist/patient privilege of confidentiality from disclosing threats to harm or kill others uttered by patients during treatment.

The unique facts and equities of Tarasoff compelled a majority of the California Supreme Court to ignore legal precedent and create a new cause of action against mental health professionals founded in negligence to compensate victims of violence committed by a patient under the care and treatment of a mental health professional who failed to warn the police and the victim of a threat to harm the victim uttered by the patient.

Yes, my friends. Tarasoff is an example of a supreme court performing a legislative function instead of deferring to the state legislature and allowing it to use the legislative process to conduct hearings on proposed legislation with witness testimony in order to craft a new law that considers all the possible effects of the new legislation and avoids creating more problems than it solves. That is the theoretical basis supporting the idea that the legislature should legislate expressing the will of the majority of the people rather than a supreme court that cannot hold hearings and call witnesses. As a practical matter, however, the legislative bodies of the states and the federal government have all but ceased to function and there is little hope or confidence that they will come up with workable solutions to vexing problems.

In Tarasoff,

An exchange student by the name of Poddar met another student, Tarasoff, at UC Berkeley. During one encounter, Tarasoff kissed Poddar. Poddar took the affections to be very serious, and once Tarasoff learned of Poddar’s feelings, she immediately told him that she was involved with other men and not interested in pursuing a serious relationship. As a result, Poddar became depressed, resentful, and stalked Tarasoff. Once Tarasoff left the country for a study session abroad, his condition improved, and he sought counseling from a psychologist at UC Berkeley. During their sessions, Poddar admitted his intent to kill Tarasoff. The psychologist, believing Poddar to be suffering from paranoid schizophrenia, requested that campus police detain Poddar and that he be civilly committed as he was a danger to others. Poddar was detained, but appearing rational, was released. Tarasoff then returned and Poddar stopped seeing the psychologist. Tarasoff was not warned of the threat posed by Poddar and eventually stabbed and killed her. Tarasoff’s parents sued the psychologist and other University employees asserting that they had a duty to warn Tarasoff or her parents of the danger she was in, and they were negligent in releasing Poddar without providing a warning.

The Court held that,

Therapists and other mental health professionals may not escape liability merely because the victim was not their patient. When a mental health professional determines that a patient presents a serious danger of violence to another, he or she is obligated to use reasonable care to protect the intended victim from the potential danger. This obligation, this duty, may require warning the police, the intended victims, or others likely to warn the victims of the danger.

A majority of the State Supreme Courts have followed Tarasoff and many states have enacted legislation that limits the potential liability of a mental health professional for a Tarasoff claim.

I do not know if Colorado is a Tarasoff state, as I do not have access to Westlaw or Lexis. Even if it is not, one can reasonably expect that most of the families of the homicide victims will be consulting lawyers regarding the possibility of filing a lawsuit against the University of Colorado for the wrongful deaths of their family members. The 58 surviving victims likely will be doing the same thing.

The Colorado Supreme Court could always join the other state supreme courts by adopting the Tarasoff rule,assuming it has not already done so.

Lawyers across the State of Colorado will be following the developments in this new story with considerable interest hoping for a chance at a big payday.

Let us assume for a moment that we are lawyers in Colorado.

We are going to need additional information to evaluate the potential exposure of the University of Colorado and the probability of success.

This is what we need to know to determine whether the the University of Colorado has any potential exposure to liability.

1. What did Holmes say or do that caused Dr. Fenton to attempt to assemble a crisis intervention team? This is the clarity, specificity and seriousness of the threat requirement. There is no duty to protect unless a threat to harm is clearly expressed and there can be no breach of duty unless there is a duty.

2. Did he express a clear threat to harm or kill a reasonably identifiable victim or group of victims and, if so, what was the threat and who was it against? This is the reasonably identifiable victim requirement. There is no duty to protect unidentifiable victims.

3. Did Dr. Fenton or any other mental health professional at the university attempt to involuntarily commit Holmes to a locked mental ward for a 72 hour period as a likely danger to himself or to others in order to evaluate his mental health and assess more fully whether he was a threat to himself or to others? This is typically a precautionary step that should be taken to assess the patient’s mental health and the seriousness of the threat in a secure setting where the patient cannot harm himself or others.

4. If not, why not? Depending on the answers to the first two questions, a failure to involuntarily commit a patient who is a danger to himself and to others may be a violation of the duty to protect the patient and others.

5. Was a crisis intervention team assembled pursuant to Dr. Fenton’s recommendation? If not, why not?

6. Did the crisis intervention team meet with Howell?

7. What was the outcome of that meeting? That is, what recommendations were made and what action was taken, if any?

You are not going to want to sue the University of Colorado, if you cannot establish a legal duty to protect, a breach of that duty, injuries proximately caused by the breach, and damages.

We’ll keep an eye on this case as it develops.

23 Responses to Is the University of Colorado Potentially Liable to Holmes’s Victims?

  1. “Missing Hardball Video Proves Corbin Dates Did Not ID James Holmes As Man Seen In Theater 9 Prior To Shooting.”

    breaking now…

  2. ajamazin says:

    This is a time for those at the University to ask Rabbi Hillel’s 3 Questions:

    If I am not for myself, who will be for me?

    But if I am only for myself, who am I?

    If not now, when?

  3. Prof,

    I’m not sure if you meant that you had no access to LexisNexis at the moment you typed this or at all. If the latter, here is LexisNexis Colorado Laws, Constitution and Revised Statutes:

    You can do a quick search for “civil liability mental health” and it will find the relevant statute for you. Incidentally, I posted the statute above.

  4. Chi says:

    Professor, where did you get the info that Holmes decision to withdraw was apparently related to the recent onset of schizophrenia?
    I have also been wondering if it was confirmed that Holmes was a patient of Fenton? It seems many people are assuming he was a patient, but without confirmation I think other things are possible. Holmes may have known Fenton outside of being a patient. Didn’t Holmes study mental illness at one point? Maybe his connection to Fenton was for initially for academic reasons?
    There is still a lot I would like to know about Holmes. He planned his crimes for months. Does that seem like a psychotic break from reality such as schizophrenia? I really don’t know, but am interested in learning. I’d also like to know if Holmes made a general threat to Fenton, or threatened her personally. The sending of the notebook, possibly knowing it would arrive after the fact makes me wonder if he was trying to purposely hurt Fenton by involving her in this mess.
    Still a lot to learn about this guy.

  5. aussie says:

    What if its not a university? Does a university have any more responsibility for its students and student-tenants than any other business has for its employees/tenants?

    What if I go crazy in my apartment complex and kill a lot of people? should my doctor have warned the landlord? should he have evicted me for this? if not, what else could he have done? sending circulars to the other residents to warn them of me might just make me that little extra paranoid.

    What if I work in McDonald’s and have paranoid fantasies about shooting up the customers?

    Where does a school’s, landlord’s or employer’s responsibility begin and end? can’t I sue them if I’m terminated by any of these on my doctor’s say-so? doesn’t their contractual responsibility to me outweigh some vague responsibility to the public against allegedly threatened potential damage?

    • Aussie,

      The Terasoff duty to warn or protect only applies to the therapist in a therapist-patient relationship.

      The duty is created if, in the course of treatment, the patient expresses to the therapist a serious threat to harm or kill an identifiable person.

      If that happens, the therapist must make a reasonable effort to protect the identifiable person by contacting them, a member of their family,, or the police to warn them about the threat. The therapist breaches the duty if he fails to do that.

      If the patient carries out the threat by injuring or killing the identified person and the therapist’s negligent failure to warn or protect the victim proximately causes those injuries, the therapist is liable for the harm suffered by the victim.

      If this happened in the Holmes case, the University of Colorado would be liable for the damages caused by the tort of its employees committed in the regular course of their employment.

      • aussie says:

        I see. You’re saying the duty of care arises not from Holme’s position there as a student or resident.

        The University has liability of some sort, only because the doctor worked in/ran the student mental health clinic?

        So, say she warned the University but they did nothing, they are still liable. What f they warned the police and THEY did nothing, are they liable? or is it designed to put liability only on those entities who might be profitably sued?

        Have there been any cases where being warned actually saved someone?

  6. I’m not sure what happened, but it looks like Holmes met with Dr. Fenton or contacted her by phone sometime in early June and he said or did something that she interpreted as a possible threat. She then notified a threat assessment team and told them what happened, but they did not take any action.

    I suspect Holmes withdrew from school within a relatively short period of time, possibly the same day and that ended the matter.

    Assuming for the sake of argument that Holmes’s statement or conduct was sufficient to create a legal duty to prevent an identifiable victim from being harmed or killed, I doubt that his decision to withdraw from school extinguished that duty. Such an exception would be inconsistent with the purpose of the rule, which is to protect identifiable victims from harm.

    The university’s threat assessment team reminds me of one of the big issues in Tarasoff-type cases and that is whether a given statement constitutes a threat. Some statements are unambiguous threats to harm someone and there is little doubt that they would create the legal duty to warn or prevent harm, assuming the existence of a reasonably identifiable victim or victims.

    There is a large category of ambiguous statements, however, that are more difficult to interpret and classify. I imagine the context in which such statements are made and the passion with which they are expressed are additional factors that should be considered in determining whether an ambiguous statement should be classified as a threat

    Presumably a threat assessment team is a group of people who have been trained to evaluate and classify ambiguous statements in a systematic and objective manner that reduces the subjective guess factor as much as possible.

    I have no idea if the use of such teams produces more accurate and reliable assessments, but the method certainly seems less haphazard.

    Since Dr. Fenton notified a threat assessment team, I imagine Holmes’s statement probably fell into the ambiguous category of potentially threatening statements. Since the university did nothing, the team likely concluded that the statement was not a threat.

    My conclusion may be wrong however and I believe this matter should be reviewed in a transparent manner to determine if Holmes’s statement constituted a threat that should have prompted a warning.

    A word of caution: The extreme harm that Holmes caused is difficult to comprehend and looking back at the events in early June, with what subsequently happened at the movie theater in mind, may compromise objectivity.

    This type of problem is not unlike the problem of unringing the bell that comes up relatively often in legal matters. For example we just encountered it in the Zimmerman case with the release of W9’s statement accusing GZ of child molestation over a 10-year-period.

    Sometimes, notwithstanding the best efforts of well intentioned people, mistakes happen and we just have to do the best we can under difficult circumstances.

    Apparently Dr. Fenton is concerned that the university may not have handled this matter in a responsible way.

    Given what is at stake, a complete and transparent investigation is necessary. Hopefully, the University of Colorado will cooperate and assure that happens.

  7. aussie says:

    I am wondering what practical action would truly result from such warnings. Let’s not forget the many cases of domestic violence, where someone has a known history of violence against a particular person, and makes frequent and witnessed threats against that person, and the police just say “we can’t do anything until something happens”.

    So just because similar threats come from someone with a diagnosed illness, that should all suddenly change? When schizophrenia is often treatable with medication, while the simply violent person doesn’t even get any.

    What are they supposed to do? put the person in for 72 hours, they turn out clean at the time, they’re released, 2 days later they do a mass shooting? they can’t be detained forever on the say so of a doctor or two. It’s a serious breach of their civil rights. They tried that in the Soviet Union for political prisoners.

    • lynp says:

      We don’t know whether or not Holmes would have turned out clean. Sadly, no 72 hour hold or deeper psych testing to evaluate Holemes capability to present a threat to others was done. Hard to see a worse conclusion then what did happen at the theatre with 12 dying and scores wounded occured had the Crisis Assement Team actually been more assertive and proactive in assessing Holmes. No, can’t hold them forever but can collect more evidence of his Mental Illness and hold them longer.

  8. gsype says:

    The university is reporting that they were notified after Holmes had already withdrawn from the program; however he was still abiding in “the university housing”. So IMO the university should be liable

    • The university should not be able to avoid liability on the ground that Holmes had withdrawn from school thereby extinguishing its legal duty to protect an identifiable victim or victims because that would defeat the purpose of the rule, which is to protect identifiable potential victims from harm.

      Notice however that there is a difference between avoiding liability and being held liable.

      I have just discussed why the university should not be permitted to avoid liability

      Whether the university can be held liable depends on whether an injured plaintiff can prove by a preponderance of the evidence that the university had a duty to warn or protect a victim, that it breached that duty by negligently failing to warn or protect the victim, that the breach of duty proximately caused the injury suffered by the plaintiff, as a result of which the plaintiff suffered monetary damages.

      The legal duty to warn or protect is created by the expression of a threat to harm an identifiable victim.

      At this point we do not know if Holmes threatened to harm an identifiable victim or victims during a conversation with Dr. Fenton in early June. He said something that alarmed her but we do not know if it was a threat and we do not know whom he threatened to harm, assuming it was a threat.

      If he did not sufficiently identify whom he intended to harm, the university would not have a duty to protect or warn anyone.

      Basically, we have insufficient information at this time to determine if the university had a duty to warn or protect.

  9. Mike Carlson says:

    Tarasoff was discussed at length in a Colorado state case, Perreira v. State. See 768 P2d 1198: “The Supreme Court, Quinn, C.J., held that psychiatrist had duty to exercise due care in determining whether involuntarily committed patient had propensity for violence and presented unreasonable risk of serious bodily harm to others upon release.” The relevant Westlaw KeyNumber appears to be 198K753.

    • Perreira is a bit old. I would suggest McCarty v. Kaiser-Hill or Halverson v. Pikes Peak Family Counseling and Mental
      Health Center.

      Also, here is the relevant statute:

      § 13-21-117. Civil liability – mental health care providers – no duty

      A physician, social worker, psychiatric nurse, psychologist, or other mental health professional and a mental health hospital, community mental health center or clinic, institution, or their staff shall not be liable for damages in any civil action for failure to warn or protect any person against a mental health patient’s violent behavior, and any such person shall not 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. A physician, social worker, psychiatric nurse, psychologist, or other mental health professional and a mental health hospital, community mental health center or clinic, institution, or their staff shall not be liable for damages in any civil action for warning any person against or predicting a mental health patient’s violent behavior, and any such person shall not be subject to professional discipline for such warning or prediction. For the purposes of this section, “psychiatric nurse” means a registered professional nurse as defined in section 12-38-103(11), C.R.S., who by virtue of postgraduate education and additional nursing preparation has gained knowledge, judgment, and skill in psychiatric or mental health nursing. The provisions of this section shall not apply to the negligent release of a mental health patient from any mental health hospital or ward or to the negligent failure to initiate involuntary seventy-two-hour treatment and evaluation after a personal patient evaluation determining that the person appears to have a mental illness and, as a result of the mental illness, appears to be an imminent danger to others.

  10. Two sides to a story says:

    Not to fuel strange conspiracy theories that I don’t usually support, but the perp WAS a neurology student, accessible to all sorts of intel program mischief and manipulation – I’d say he suffers from straight-up mental illness if it weren’t for all these university connections . . . it will be interesting to see the underside of this case revealed, if that’s even a remote possibility . . . perhaps the university truly is liable, but not in the conventional sense . . .

  11. crazy1946 says:

    I have read the story for the treating Dr. claiming that the school was notified, but as yet the school has not admitted that it was. Could this be an attempt by the Dr. to spread the liability? Will there first need to be actualy formal proof of the actions that the Dr. is claiming? Or will only the claim be enough to start a feeding frenzy of ambulance chasers? (no disrespect intended) There have been rumors of an experiment gone bad also, should there be any merit given to those?

    • I think the medical records will speak for themselves and establish who said what and when they said it.

      Since Holmes was Dr. Fenton’s patient, she is the first in the line of fire.

      In fairness to her, however, we don’t know what prompted her to recommend the assessment and we don’t know whether Holmes continued to see her or if his condition had deteriorated since she last saw him.

      He’s a very sick and very lost human being.

      • crazy1946 says:

        Can we push this question a little bit more? If one were to assume that Dr. Fenton had obtained enough information from Holmes that she was confident that he was about to perform a criminal act, did her responsibility end with reporting it to the school? If she was sure that he was acting with criminal intent, should she also have notified the local PD? Could if it is determined that she did not fulfil the legal responsibilities to prevent the crime from happening be held in some way legally responsibility as an accesory to the crime? I realize the civil case that could be brought, but could a criminal case be made as well? Perhaps my wording in not quite a clear as it needs to be, hopefully you will be able to understand my ramblings?

      • aussie says:

        I’m a bit concerned about Crazy1946 using the term “criminal act”. Many criminal acts are no danger to anyone. Does a psychiatrist have to report a patient who is a kleptomaniac?

        It’s not an issue of the act being against the law. It’s an issue of it being a serious danger to other people. And certainly a mentally ill person would not be looking at it as a crime but as something justified or necessary.

        A paid hitman intends to commit a criminal act. A schizophrenic intends to obey the voices in his head. Bad luck that happens to be something that’s against the law and results in dead people.
        I am not aware of any requirement anywhere in the world for someone who knows of a planned crime to report it. Certainly failure to report would not make one an accessory.
        (Mandatory reporting by schools, hospitals etc of suspected child abuse is a reporting of existing evidence of past possible crimes).

      • Dennis says:

        I agree with you 100%. I respect that you fought case after case to prevent criminals from being executed. I am a 100% fan of the death penalty. I am not religious. I believe that this life is the only one we have. If someone takes that sacred life from someone. they themselves need to be executed. If there is a god and an afterlife, they will be forgiven for their terrible acts.

      • crazy1946 says:

        >>I’m a bit concerned about Crazy1946 using the term “criminal act”. <<
        Please realize that it was a question not an accusation! Nor was it a suggestion that a crime should be considered to have taken place on the part of the Dr. or the Univ.! Sorry for the confusion…

      • ajamazin says:

        “Former University of Colorado student James Holmes was referred to a threat team at his school weeks before he killed 12 people in a deadly theater shooting.

        Holmes, 24, was seeing school psychiatrist Dr. Lynne Fenton in the week’s leading up to the shooting. Fenton, alarmed by Holmes and worried about a possible violent streak, warned the school’s Behavioral Evaluation and Threat Assessment (BETA) team, the Denver Post reported this week.”

        What more could Dr Fenton have done?

        In Florida, Dr Fenton could have “Baker Acted” Holmes, or a concerned member of the school community who had contact w. Holmes could have gone to the court house and filed a Petition and Affidavit Seeking ExParte Order Requiring Involuntary Examination.

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