Legal Duty in Tort of Parents of Mentally Disabled Adult who Kills Hinges Upon Whether Parents Could Foresee Violent Harmful Acts Against Others

Posted in: Tort Liability by Ronald Henderson on

A 19 year-old “autistic” man shot and tragically killed two people before killing himself. In Smith v. Freund (filed February 2, 2011) 2011 DJDAR 1935, the family of the two victims sued the parents of the shooter primarily alleging that the defendants negligently failed to supervise their son, who lived with and was supported by the parents. Summary judgment awarded by Orange County Superior Court in favor of defendants was affirmed by the California Court of Appeal, Fourth Appellate District, Division Three, because the shootings of third parties by defendant’s son was unforeseeable.

Plaintiffs contended defendants had a duty to monitor and control their son and to prevent him from harming others. Acknowledging he was an adult by age, plaintiffs asserted two alternative bases to support their contention: defendants had a special relationship with their son (see Megeff v. Doland (1981) 123 Cal.App.3d 251, concerning ability to control), and defendants had voluntarily undertaken a duty to monitor him (see Hansra v. Superior Court (1992) 7 Cal.App.4th 630, concerning taking charge of another). Even if a general foreseeability standard applied, argued plaintiffs, a violent outburst by the son was foreseeable to defendants.

The appellate court determined the only inference the evidence reasonably supported was the defendants could not foresee violent acts by their son because they knew of no propensity or intention of him to harm third parties. Medical expert evidence established that his specific condition (Asperger’s Syndrome) is a social deficit and nonverbal learning disorder that has no substantial correlation with physical hostility toward others. While there was evidence of the son’s aggressive conduct toward his parents, there was only one instance of anger directed at other persons. The court viewed the defendants’ actions as trying to help their son deal with his mental problems; something for which they should not be morally blamed. To impose the legal duty asserted by the plaintiffs, concluded the court, could cause greater harm in future cases by encouraging parents to dissociate from adult children with serious chronic problems.

My last two sentences that I have paraphrased from the court’s opinion illustrate to me a sincere policy concern expressed by the court. Rather than simply state that forseeability requires more than awareness of a potentially dangerous mental state, that there must be some prior conduct by the son that at least remotely approaches this level of violence toward non-family; the court explores more deeply the factors stated in Rowland v. Christian (1968) 69 Cal.2d 647, including policy issues of moral blame, preventing future harm and community consequences. The opinion may sound excessively sympathetic of the parents’ plight to some readers. But certainly we live in a time that we should not be deterred from helping diseased daughters, sons and other relatives for fear of taking on a potentially detrimental legal duty. This in a society of greater diagnosis of autism and other mental impairments with diminished public financial resources to fund housing and treatment.

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