Vattimo v. Lower Bucks Hospital, Inc.

465 A.2d 1231, 502 Pa. 241, 1983 Pa. LEXIS 680

• Court: Supreme Court of Pennsylvania
• Decided: September 28, 1983
• Docket: 81-3-437
• Status: Published

Opinions

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

FLAHERTY, Justice.

On August 14, 1976 James Vattimo was admitted to the Lower Bucks Hospital in Bucks County, Pennsylvania because he exhibited bizarre behavior and an abnormal fascination with fire. He was transported to the hospital by his parents and the Bristol Township Police. At the hospital he was diagnosed as paranoid-schizophrenic and was placed in a semi-private room under sedation but without supervision. A few hours after his parents left the hospital, James allegedly set a fire in the room, causing or contributing to the death of the other occupant of the room.

As a result of this incident James was charged with first degree murder and arson and was prosecuted in a criminal action; he was also joined as an additional defendant in a civil suit brought by the representative of the deceased patient against the hospital.

In the present action James’ parents on their own behalf, and his mother as guardian ad litem for James, assert that the hospital was negligent in its care and treatment of James. The action was brought pursuant to the Health Care Services Malpractice Act of 1975, 40 P.S. § 1301.101 et seq. for various damages to both parents and son. The hospital filed preliminary objections in the nature of a demurrer to the complaint, and the Administrator, Arbitration Panels for Health Care sustained the preliminary objections by order of April 17, 1979. Plaintiffs appealed to Commonwealth Court, 59 Pa.Cmwlth. 1, 428 A.2d 765, which reversed the administrator’s order on April 24,1981, and the hospital petitioned for allowance of appeal to this Court. The petition was granted.

The case comes before this Court for review of whether preliminary objections in the nature of a demurrer should be sustained, and in that context the hospital raises three arguments: (1) the hospital has no duty to protect a mental patient from damages suffered as a result of court proceedings brought by the Commonwealth; (2) the injury to James was not proximately or legally caused by the hospital’s negligence; (3) there is no cause of action for counsel fees in the circumstances of this case, as claimed in the complaint.

The Commonwealth Court correctly stated the scope of the review of an appellate court when there is a challenge to the sustaining of preliminary objections in the nature, of a demurrer:

All material facts set forth in the complaint as well as all inferences reasonably deducible therefrom are admitted as true for [the purpose of this review.] Clevenstein v. Rizzuto, 439 Pa. 397, 266 A.2d 623 (1970). The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible.. Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 267 A.2d 867 (1970). Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it. Birl v. Philadelphia Electric Co., 402 Pa. 297, 167 A.2d 472 (1960).

Turning to the complaint, as a general matter, in order to recover the plaintiffs must allege and prove that the hospital owed a duty to James, that the hospital breached its duty, and that this breach was the legal cause of the injuries of which James and his parents now complain. Brannan v. Lankenau Hospital, 490 Pa. 588, 417 A.2d 196 (1980). On a demurrer, the hospital may not challenge the material facts or inferences therefrom which are pleaded in the complaint, but may challenge the existence of a legal duty or that its negligence, if such existed, was the legal cause (i.e., the proximate cause) of plaintiffs’ injuries. As mentioned earlier, the hospital asserts that its conduct was not a legal cause of plaintiffs’ injuries and it claims as well that it had no duty of care to protect a mental patient from damages caused by a criminal prosecution.

The damages in the complaint allegedly caused by the hospital’s negligence are treated in two counts. In the first, James’ parents seek recovery for (1) amounts expended and to be expended for medical and psychiatric care and treatment; (2) amounts expended to defend James in civil and criminal actions brought as a result of the fire; (3) emotional distress, humiliation, embarrassment and anxiety. In the second count, James’ guardian ad litem seeks recovery for (1) James’ mental, emotional, and physical pain and anguish; (2) James’ loss of his employment; (3) James’ public humiliation, embarrassment, anxiety, and mental and emotional distress.

At its root, the concept of legal cause (the traditional “proximate cause”) is an articulation of policy related to social and economic considerations. Dean Prosser has described proximate or legal causation as follows:

Once it is established that the defendant’s conduct has in fact been one of the causes of the plaintiff’s injury, there remains the question whether the defendant should be legally responsible for what he has caused. Unlike the fact of causation, with which it is often hopelessly confused, this is essentially a problem of law. It is sometimes said to be a question of whether the conduct has been so significant and important a cause that the defendant should be legally responsible. But both significance and importance turn upon conclusions in terms of legal policy, so that this becomes essentially a question of whether the policy of the law will extend the responsibility for the conduct to the consequences which have in fact occurred.

Prosser, Law of Torts § 42 (4th Ed.) (Emphasis added). This Court, in accord with Prosser, has stated: “the concept [of proximate cause], like that of negligence itself, was designed not only to permit recovery for a wrong but to place such limits upon liability as are deemed socially or economically desirable from time to time.” Grainy v. Campbell, 493 Pa. 88, 94, 425 A.2d 379, 382 (1981), citing Whitner v. Lojeski, 437 Pa. 448, 455, 263 A.2d 889, 893 (1970).

As a general rule, however, in the absence of policy considerations which would limit liability, if an actor’s negligence is the legal cause of damages sustained by another, the actor is liable for those damages. See Grainy v. Campbell, 493 Pa. 88, 95, 425 A.2d 379, 383 (1981) (Concurring Opinio^ of Mr. Justice Nix). Under the analysis of “legal cause”/ set forth in the Restatement of Torts, Second and adoptecj. by this Court, Ford v. Jeffries, 474 Pa. 588, 594, 379 A.2d 111, 114 (1977), the question is whether the defendant’s conduct was a “substantial factor” in producing the injury. Restatement of Torts, Second § 431 (1965). Section 433 of the Restatement sets forth a method of determining whether negligent conduct is a substantial factor in producing the injury:

§ 433. Considerations Important in Determining Whether Negligent Conduct is Substantial Factor in Producing Harm

The following considerations are in themselves or in combination with one another important in determining whether the actor’s conduct is a substantial factor in bringing about harm to another:

(a) the number of other factors which contribute in producing the harm and the extent of the effect which they have in producing it;

(b) whether the actor’s conduct has created a force or series of forces which are in continuous and active operation up to the time of the harm, or has created a situation harmless unless acted upon by other forces for which the actor is not responsible;

(c) lapse of time.

As this Court observed in Ford v. Jeffries, supra, ordinarily the determination of whether the defendant’s conduct was a substantial cause of the injuries complained of should not be taken from the jury if the jury may reasonably differ as to whether the conduct of the defendant has been a substantial factor in causing the harm. See also Restatement of Torts, Second § 434. If issues are raised on which a jury may not reasonably differ, it is proper for the trial court to decide them. If, on the other hand, a jury may reasonably differ on whether the defendant’s conduct was a substantial factor in causing the injury, generally, the case must go to the jury on those issues.¹

With respect to the claims for damages related to defending the criminal and civil actions, the hospital asserts that it had no duty to protect against harm related to the Commonwealth’s decision to bring a criminal action, and that there is no authority for awarding damages for the defense of a civil action in the circumstances of this case.

The plaintiffs’ view of these damages is that they are merely the normal foreseeable consequences of the defendant’s tortious conduct. Such damages are, in essence, a demand for indemnification, recovery for which may lie, according to Prosser, even when the indemnitee is not free from active fault.²

In the present case, plaintiffs’ claim for legal process damages rests in large part on the theory that even though James is a joint active tortfeasor (and thus is also “at fault”), he should not be precluded from indemnification for legal process damages since he was entrusted to the care and supervision of the hospital and was helpless in fact if not in law to prevent the injury which occurred. Under this view, justice requires recovery for all damages, including the legal process damages, because the hospital undertook to prevent injury of the very sort that occurred. Recovery for legal process damages flowing from such a breach of duty is recognized, moreover, by the Restatement of Torts, Second § 914(2) (1979):

(2) One who through the tort of another has been required to act in the protection of his interests by bringing or defending an action against a third person is entitled to recover reasonable compensation for the loss of time, attorney fees and other expenditures thereby suffered or incurred in the earlier action.

A reason that is sometimes advanced for such imposition of liability is drawn from the master-servant cases, where some commentators have felt it advisable, as a matter of policy, to assign liability vicariously to employers in order to promote safety and avoid accidents.³ This reasoning, by analogy, would seem to apply to the present case, where the hospital, arguably, is in the shoes of an employer who has assumed control, and therefore, should and could have prevented the fire and resulting injury.

These arguments notwithstanding, the decided case law of Pennsylvania provides no authority for indemnity recovery in the circumstances of this case. In Builders Supply v. McCabe, which involved a claim for indemnity, or in the alternative, contribution, this Court distinguished the two types of claims as follows:

There is ... a fundamental difference between indemnity and contribution. The right of indemnity rests upon a difference between the primary and the secondary liability of two persons each of whom is made responsible by the law to an injured party. It is a right which enures to a person who, without active fault on his own part, has been compelled, by reason of some legal obligation, to pay damages occasioned by the initial negligence of another, and for which he himself is only secondarily liable. The difference between primary and secondary liability is not based on a difference in degrees of negligence or on any doctrine of comparative negligence .... It depends on a difference in the character or kind of the wrongs which cause the injury and in the nature of the legal obligation owed by each of the wrongdoers to the injured person. Secondary liability exists, for example, where there is a relation of employer and employee, or principal and agent.... Without multiplying instances .. . the important point to be noted in all the cases is that secondary as distinguished from primary liability rests upon a fault that is imputed or constructive only, being based on some legal relation between the parties, or arising from some positive rule of common or statutory law or because of a failure to discover or correct a defect or remedy a dangerous condition caused by the act of the one primarily responsible. In the case of concurrent or joint tortfeasors, having no legal relation to one another, each of them owing the same duty to the injured party, and involved in an accident in which the injury occurs, there is complete unanimity among the authorities everywhere that no right of indemnity exists on behalf of either against the other; in such a case, there is only a common liability and not a secondary one, even though one may have been very much more negligent than the other.

366 Pa. 322, 325-328, 77 A.2d 368, 370-371 (1951) (Emphasis supplied in the clauses).

The holding in McCabe was that plaintiff was not able to recover indemnity because his own active negligence was established as a contributing factor by the record in the case. 366 Pa. at 335, 77 A.2d at 374. Thus, the rule is that where one’s active negligence has been established in a prior action, and the record of that litigation is introduced in the present action for indemnity, indemnity is not available if the claimant’s active fault has been established in the prior action. In the present case James’ own complaint admits his active part in the events which resulted in injury; thus, under McCabe James may not recover for damages occasioned by the legal process, either civil or criminal. As Prosser suggests, such a result, at bottom, is a policy decision to allocate responsibility to one party rather than the other, but on balance, where a claim relating to legal process damages is concerned, as between joint or concurrent active tortfeasors, the claim for indemnification should be denied, as it was in McCabe. This rule is based upon the ancient principle injuria propria non cadet in beneficum facientis (one should not be allowed to derive benefit from his own wrongful act), which, as it applies to a claim for the recovery of damages incurred in a previous legal process, remains the law of Pennsylvania. Accordingly, damages related to the legal process may not be recovered as a matter of law.

' I turn now to a consideration of the damages remaining at issue in this case. Not at issue on this appeal is the parents’ emotional distress claim. That claim was denied by the Commonwealth Court and the denial was not raised as error on this appeal. Also no longer at issue, because of the earlier discussion, are civil and criminal defense damages. Such damages may not be claimed. The damage claims remaining on behalf of the parents are expenditures for medical and psychiatric care. Damages asserted on James’ behalf are mental anguish, loss of employment and public humiliation.

As to the hospital’s claim that its conduct is not the legal cause of the remaining damages, in the absence of policy reasons that would limit recovery for the remaining damages, a determination as to whether the hospital’s conduct was. the legal cause of such damages is greatly aided by application of the factors set out in the Restatement’s § 433, supra: (1) the number of factors contributing to the harm; (2) whether the actor’s conduct created a force that was continuous up to the time of harm; (3) the period of time that elapsed between the actor’s conduct and the harm.

With regard to the first consideration, on the facts as pleaded, the only factors contributing to the remaining injuries are the hospital’s conduct and various Commonwealth acts, and thus, I would not hold as a matter of law that the hospital’s conduct, as alleged, was not a substantial factor. With regard to the second consideration, the hospital’s conduct arguably created forces that were in continuous and active operation up to the time of injury, and thus, again, I would not say as a matter of law that the hospital’s conduct was not a legal cause of the injuries asserted. Finally, the last consideration, the lapse of time between the hospital’s conduct and the injury, arguably, was negligible or irrelevant. Since these considerations suggest that a jury might differ on whether the hospital’s conduct was a “substantial factor” in producing the plaintiffs’ remaining damages, ordinarily, in the absence of policy reasons to the contrary or the presence of a superseding cause, the question whether the hospital’s conduct was the legal cause of plaintiffs’ remaining damages is one for the jury to determine.

Concerning the possibility that James’ acts were a superseding ⁴ cause of the injuries he and his parents suffered, we note at the outset our agreement with the Commonwealth Court’s analysis of superseding cause in this case:

[E]ven where an intervening act is wrongful it does not become a superseding cause unless, looking retrospectively from the harm through the sequence of events by which it was produced, it is so extraordinary as not to have been reasonably foreseeable.

Cf. Restatement of Torts, Second §§ 435, 447; Ross v. Vereb, 481 Pa. 446, 392 A.2d 1376 (1978); Bleman v. Gold, 431 Pa. 348, 246 A.2d 376 (1968). It can hardly be thought extraordinary that a person who is admitted to a hospital because of paranoid-schizophrenic behavior, and particularly an abnormal fascination with fire, when he is left unsupervised in the hospital, sets a fire. As this Court stated in Thornton v. Weaber:

The law is not so unaware of reality that it will permit a tortfeasor to turn his wrongful act into an immunity by asserting that the eventual damage resulted from a more immediate cause when it is clear that this immediate cause was put into operation by his own tortious condiict.

380 Pa. 590, 595, 112 A.2d 344, 347 (1955). Therefore, the act of James in setting the fire was not a superseding cause of the injuries complained of.

Thus, viewing all material facts pleaded in the complaint as true, and asking whether as a matter of law the injuries remaining at issue may not be recovered in this action, or whether the jury could differ as to whether the hospital’s conduct was a “substantial” cause of the above injuries, I conclude, in light of the considerations set forth in Restatement § 433, discussed earlier, and in the absence of policy considerations which might preclude recovery, that the jury might differ as to whether the hospital’s conduct was a substantial cause of the remaining injuries, and thus that the case must go to the jury on all the remaining issues of damages.

Affirmed in part and reversed in part, and remanded for trial.

HUTCHINSON, J., joins and files a concurring opinion. ROBERTS, C.J., files a concurring opinion. NIX, J., files a concurring and dissenting opinion in which McDermott, j., joins. LARSEN and ZAPPALA, JJ., file concurring and dissenting opinions.

1 . § 434. Functions of Court and Jury

(1) It is the function of the court to determine

(a) whether the evidence as to the facts makes an issue upon which the jury may reasonably differ as to whether the conduct of the defendant has been a substantial factor in causing the harm to the plaintiff;

(b) whether the harm to the plaintiff is capable of apportionment among two or more causes; and

(c) the questions of causation and apportionment, in any case in which the jury may not reasonably differ.

(2) It is the function of the jury to determine, in any case in which it may reasonably differ on the issue,

(a) whether the defendant’s conduct has been a substantial factor in causing the harm to the plaintiff, and

(b) the apportionment of the harm to two or more causes.

(Emphasis added).

2 . According to Prosser:

The right to indemnity may ... arise without agreement, and by operation of law to prevent a result which is regarded as unjust or unsatisfactory. Although the ancient specious argument that the courts will not aid one tortfeasor against another because no one should be permitted to found a cause of action on his own wrong, would appear to apply quite as fully to indemnity as to contribution, the courts have been much more disposed to reject it where indemnity is involved.

Thus it is generally agreed that there may be indemnity in favor of one who is held responsible solely by imputation of law because of his relation to the actual wrongdoer, as where an employer is vicariously liable for the tort of a servant or an independent contractor; or an innocent partner or carrier is held liable for the acts of another, or the owner of an automobile for the conduct of the driver....

The principle is not, however, limited to those who are personally free from fault A similar rule has been applied to indemnity against a supplier of goods when a retailer or user of the goods incurs liability by reason of negligent reliance upon his proper care____ Again, it is quite generally agreed that there may be indemnity in favor of one who was under only a secondary duty where another was primarily responsible, as where a municipal corporation, held liable for failure to keep its streets in safe condition, seeks recovery from the person who has created the condition, or a property owner who has permitted it; or an owner of land held liable for injury received upon it sues the wrongdoer who created the hazard____

[I]t has been suggested that one who is liable merely for ordinary negligence should have indemnity from another who has been guilty of intentionally wrongful or reckless conduct. There is, however, no visible support for such a proposition, other than the obvious fact that there can be no indemnity in favor of the intentional or reckless tortfeasor himself.... Finally, it has even been held that the doctrine of the last clear chance is to be applied to permit indemnity for the earlier liability against the later....

Out of all this, it-is extremely difficult to state any general rule or principle as to when indemnity will be allowed and when it will not. It has been said that it is permitted only where the indemnitor has owed a duty of his own to the indemnitee; that it is based on a “great difference” in the gravity of the fault of the two tortfeasors; or that it rests upon a disproportion or difference in character of the duties owed by the two to the injured plaintiff. Probably none of these is the complete answer, and, as is so often the case in the law of torts, no one explanation can be found which will cover all of the cases. Indemnity is a shifting of responsibility from the shoulders of one person to another; and the duty to indemnity will be recognized in cases where community opinion would consider that in justice the responsibility should rest upon one rather than the other. This may be because of the relation of the parties to one another, and the consequent duty owed; or it may be because of a significant difference in the kind or quality of their conduct.

The Law of Torts, § 51 (4th Ed.) (Emphasis supplied).

Arguably, in this case, all three general tests for indemnification are met: (1) the indemnitor (in plaintiffs view, the hospital) owed a duty of its own to the indemnitee (in plaintiffs view, James); (2) there is a “great difference” in the gravity of fault of the two tortfeasors in that the hospital’s alleged negligence was a precondition of James’ acts; (3) there is, arguably, “a disproportion” in the character of duties owed the deceased by the hospital and James.

3 . According to Harper and James:

[N]either the fault aspect nor the evidence aspect of the master’s right of control explains vicarious liability, for this is imposed, as an everyday matter, in cases where the master has taken all the steps that reasonable foresight would suggest, including those which involve the exercise of control. Indeed, the court is not even interested in hearing whether the master exercised his right of control well and prudently. If the master had that right, he will be liable if the servant was negligent, even though the master was not on the scene and though his training, selection, equipment, supervision and operating rules left nothing to be desired. The cases in which defendant who has no vicarious responsibility is held for failure to exercise a right of control over the conduct of another person present a marked contrast to the vicarious liability of a fault-free principal.

What has been said shows that vicarious liability may not rationally be justified on any theory of the master’s personal fault which is worked out through his general right of control. It does not follow, however, that this right of control is altogether irrelevant to the justification of vicarious liability. It has some relevance, but that significance lies not in any connection between control and fault but rather in its bearing on the possibility of accident prevention. There is little doubt that employers of labor are among those strategically placed to promote accident prevention in connection with their operations.... Pressure of legal liability on the employer therefore is pressure put in the right place to avoid accidents. This reasoning has nothing to do with fault. It is true of course that liability based on a finding of the master’s fault will put pressure on the employer to be careful. But the imposition of strict liability on an employer will exert even greater pressure to prevent accidents and perhaps will often encourage the use of devices or techniques which would not have occurred to the reasonably prudent man had he not been bidden to use his Yankee ingenuity to “achieve the impossible.”

2 Law of Torts § 26.3.

4 . The terms “intervening” and “superseding” cause have to do with causes of injury which are independent of and come after the defendant’s negligence, but which operate to produce a harm. An “intervening” cause is merely one arising after the negligence of the defendant, and does not relieve the defendant of liability, often because the intervening cause was foreseeable, or if not foreseeable, was a normal incident of the risk created. A “superseding” cause also arises after the defendant’s negligence, but, does operate to relieve the defendant of liability, usually for reasons having to do with the “remoteness” of the cause or the harm from the original negligence of the defendant. See Prosser, Law of Torts § 44 (4th Ed.).