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.
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.