The opinion
¶107 (concurring in part/dissenting in part) — In my view, appellants fail to show Jan DeMeerleer ever communicated to respondents any actual threat of physical harm concerning these third-party appellants during his treatment. Thus, under current applicable law, I would hold respondents fail to show the necessary foreseeable risk of harm to raise a legal duty to protect appellants. I would affirm the trial court’s grant of summary judgment in all respects.
Brown, A.C.J.
¶108 Long before this tragic incident, Mr. DeMeerleer expressed isolated homicidal thoughts about an ex-wife and an unknown prowler. Mr. DeMeerleer never mentioned to respondents any homicidal or threatening thoughts toward appellants. Indeed, on April 16, 2010, Mr. DeMeerleer last saw respondents, telling them he was mending his relationship with Rebecca Schiering and would not act on his suicidal ideas. On July 18, 2010 when off his medications, Mr. DeMeerleer shot and killed Rebecca 1 and Phillip Schiering, attempted to kill Brian Winkler, then killed himself. Family members, friends, and acquaintances who visited Mr. DeMeerleer shortly before the incident gleaned no indication of any plan. Respondents moved successfully for summary judgment, partly arguing they owed no third- *436 party duty. The trial court agreed, reasoning respondents could not have reasonably identified' Rebecca, Phillip, or Brian as Mr. DeMeerleer’s target because he communicated no “actual threat of physical violence” toward them. RCW 71.05.120(2).
¶109 To prevail in a professional malpractice suit against a mental health care provider, the plaintiff must prove the defendant breached a duty owed to him or her and, thereby, proximately caused damages. Petersen v. State, 100 Wn.2d 421, 435 , 671 P.2d 230 (1983). At common law, a person owes no duty to control a dangerous person’s conduct or protect a foreseeable victim from it unless the person has a special relationship with either the dangerous person or the foreseeable victim. In Kaiser v. Suburban Transportation System, 65 Wn.2d 461 , 398 P.2d 14 , 401 P.2d 350 (1965), our Supreme Court acknowledged a physician-patient relationship may trigger a duty for the benefit of an injured third party.
¶110 In 1973, our legislature immunized mental health professionals from civil and criminal liability for performing certain statutory duties “in good faith and without negligence.” Laws of 1973, 1st Ex. Sess., ch. 142, § 17; Laws of 1973, 2d Ex. Sess., ch. 24, § 5. Our legislature increased this standard of care the next year, requiring performance “in good faith and without gross negligence.” Laws of 1974, 1st Ex. Sess., ch. 145, § 7. Last amended in 2000, this immunity provision now reads,
(1) No officer of a public or private agency, nor the superintendent, professional person in charge, his or her professional designee, or attending staff of any such' agency, nor any public official performing functions necessary to the administration of this chapter, nor peace officer responsible for detaining a person pursuant to this chapter, nor any county designated mental health professional, nor the state, a unit of local government, or an evaluation and treatment facility shall be civilly or criminally liable for performing duties pursuant to this chapter with regard to the decision of whether to admit, *437 discharge, release, administer antipsychotic medications, or detain a person for evaluation and treatment: PROVIDED, That such duties were performed in good faith and without gross negligence.
RCW 71.05.120(1) (reviser’s note omitted). 2
¶111 Historically, the California Supreme Court decided the landmark case of Tarasoff v. Regents of the University of California, 17 Cal. 3d 425 , 551 P.2d 334 , 131 Cal. Rptr. 14 (1976). There, a voluntary outpatient told his psychotherapist he planned to kill an unnamed but readily identifiable woman when she returned home from summer travels. Id. at 432 . The therapist disclosed the plan to law enforcement, who arrested the patient but released him. Id. The therapist did not warn the targeted woman or her family. Id. at 433 . The patient soon killed the targeted woman as planned. Id. Applying Restatement (Second) of Torts § 315 (Am. Law Inst. 1965), the Tarasoff court held the therapist-patient relationship triggered a duty for the benefit of the victim and her family. Id. at 435-36 . Thus, the therapist owed the victim and her family a duty to warn them of the threat the patient posed. Id. at 435-36, 438 . The Tarasoff court ruled:
When a therapist determines, or pursuant to the standards of his profession should determine, that his patient presents a serious danger of violence to another, he incurs an obligation to use reasonable care to protect the intended victim against such danger. The discharge of this duty may require the therapist to take one or more of various steps, depending upon the nature of the case. Thus it may call for him to warn the intended victim or others likely to apprise the victim of the danger, to notify the police, or to take whatever other steps are reasonably necessary under the circumstances.
Id. at 431 .
¶112 Later California cases decided a psychotherapist owes a duty solely to a person he or she can readily identify *438 as the patient’s target. See Thompson v. County of Alameda, 27 Cal. 3d 741, 752-54 , 614 P.2d 728 , 167 Cal. Rptr. 70 (1980); Mauroudis v. Superior Court, 102 Cal. App. 3d 594, 600 , 162 Cal. Rptr. 724 (1980); 4 Stuart M. Speiser, Charles F. Krause & Alfred W. Gans, The American Law of Torts § 15:41, at 772-73 (2009). Cases from other jurisdictions similarly hold a psychotherapist owes a duty to any person he or she should reasonably foresee is endangered by the patient’s mental condition. See Semler v. Psychiatric Inst. of Wash. D.C., 538 F.2d 121, 124 (4th Cir. 1976); Lipari v. Sears, Roebuck & Co., 497 F. Supp. 185, 194-95 (D. Neb. 1980); Williams v. United States, 450 F. Supp. 1040, 1046 (D.S.D. 1978); 4 Speiser, Krause & Gans, supra, § 15:41, at 773-74.
¶113 The Petersen court adopted the latter approach. Petersen, 100 Wn.2d at 427-28 . Applying Tarasoff, Lipari, and Kaiser, the Petersen court held the therapist involved owed a duty to any person he should have reasonably foreseen was endangered by the patient’s drug-related mental problems. Id. at 428 . The therapist owed the victim a duty to take reasonable precautions protecting her from the threat the patient posed. Id.
¶114 In 1985, the California Legislature enacted a measure “to limit the liability of psychotherapists under Tarasoff? Barry v. Turek, 218 Cal. App. 3d 1241, 1244 , 267 Cal. Rptr. 553 (1990). Two years later, our legislature enacted a similar measure, adding a subsection to the then-existing immunity provision that effectively limited the liability of mental health professionals under Petersen, Tarasoff, and Lipari . Under subsection (1), a mental health professional is immune from civil and criminal liability for performing duties arising from chapter 71.05 RCW regarding a decision to “admit, discharge, release, administer antipsychotic medications, or detain a person for evaluation and treatment” so long as the professional performs the duties “in good faith and without gross negligence.” Critical here is subsection (2):
*439 This section, does not relieve a person from ... the duty to warn or to take reasonable precautions to provide protection from violent behavior where the patient has communicated an actual threat of physical violence against a reasonably identifiable victim or victims. The duty to warn or to take reasonable precautions to provide protection from violent behavior is discharged if reasonable efforts are made to communicate the threat to the victim or victims and to law enforcement personnel.
Laws of 1987, ch. 212, § 301(2) (emphasis added) (codified at RCW 71.05.120(2)).
¶115 Under subsection (2), a mental health professional still has a duty to “warn or to take reasonable precautions to provide protection from violent behavior” where a patient communicates to the professional an “actual threat of physical violence against a reasonably identifiable victim or victims.” In my view, this record fails to show Mr. DeMeerleer communicated to respondents the necessary threat of physical violence toward appellants.
¶116 Considering the historical development of RCW 71.05.120, two principles emerge. First, a mental health professional owes the duties specified in subsection (1) to any person he or she should reasonably foresee is endangered by the patient’s mental condition. See Fay Anne Freedman, The Psychiatrist’s Dilemma: Protect the Public or Safeguard Individual Liberty?, 11 Puget Sound L. Rev. 255, 276-77 (1988). Second, a mental health professional owes the duties specified in subsection (2) solely to a person he or she can reasonably identify as the patient’s target after the patient communicates an actual threat of physical violence. See id. Thus, RCW 71.05.120(1) and (2) address different duties that should be separately analyzed.
¶117 Petersen would be decided the same under subsection (1) because, while the victim was reasonably foreseeable, the psychotherapist was grossly negligent in performing duties arising from chapter 71.05 RCW regarding the decision to discharge the patient or petition for additional *440 commitment. See 100 Wn.2d at 424, 428-29, 436-38 ; Freedman, supra, at 277. Contra Hertog v. City of Seattle, 138 Wn.2d 265, 292 , 293 n.7, 979 P.2d 400 (1999) (Talmadge, J., concurring). But Petersen would be decided differently under subsection (2) because, while the psychotherapist was grossly negligent in failing to take reasonable precautions protecting against the threat the patient posed, the patient did not communicate an actual threat of physical violence; thus, the victim was not reasonably identifiable and foreseeable. See 100 Wn.2d at 424, 428-29, 436-38 ; Freedman, supra, at 277.
¶118 Here, the sole focus is RCW 71.05.120(2) because appellants alleged respondents did not adequately assess Mr. DeMeerleer’s suicide risk or plan follow-up care. Appellants allege doing so would likely have resulted in better psychiatric care exposing Mr. DeMeerleer’s homicidal thoughts about Rebecca, Phillip, and Brian that would, in turn, have prevented the incident by either mitigating Mr. DeMeerleer’s dangerousness or serving as cause to warn and protect them. While these claims are broad enough to allege respondents breached the duties specified in either subsection (1) or (2), appellants’ reply brief clarified they did not intend to allege respondents breached any duties arising from chapter 71.05 RCW regarding a decision to “admit, discharge, release, administer antipsychotic medications, or detain a person for evaluation and treatment.” RCW 71.05.120(1). 3 Therefore, appellants solely alleged respondents breached the duty to “warn or to take reasonable precautions to provide protection from violent behavior.” RCW 71.05.120(2). 4
*441 ¶119 In sum, I would hold the trial court correctly reasoned that respondents could not have reasonably identified Rebecca, Phillip, or Brian as Mr. DeMeerleer’s targets because he communicated no “actual threat of physical violence” toward them. RCW 71.05.120(2). Because I would affirm the trial court’s summary judgment dismissal of appellants’ third-party liability claims, I respectfully dissent to the majority decision to reverse the trial court’s grant of summary judgment to respondents on the third-party claims. I concur with the majority decisions partly affirming the trial court’s dismissal of the other claims.
¶120 Accordingly, I concur in part and dissent in part.
Reconsideration denied February 3, 2015.
Review granted at 183 Wn.2d 1007 (2015).
For clarity, I use given names.
In their opening brief to us, appellants argue RCW 71.05.120(1) applies solely to mental health professionals at public agencies. But in their reply brief to us, appellants properly concede that argument is untenable.
Even if the duties specified in RCW 71.05.120(1) applied, I would conclude appellants lack evidence showing respondents performed those duties in bad faith or with gross negligence.
I would reject appellants’ attempt to distinguish the duty specified in RCW 71.05.120(2) from the case law. Subsection (2) clearly addresses the same case law duty. Compare RCW 71.05.120(2) (“This section does not relieve a person from ... the duty to warn or to take reasonable precautions to provide protection from violent behavior....”), with Petersen, 100 Wn.2d at 428 (holding the psychothera *441 pist “incurred a duty to take reasonable precautions to protect”), and Tarasoff, 17 Cal. 3d at 431 (stating the relevant duty requires the psychotherapist to “use reasonable care to protect” by, for example, “warn[ingl” or “tak[ingl whatever other steps are reasonably necessary under the circumstances”), and Lipari, 497 F. Supp. at 193 (same). Therefore, subsection (2) logically applies in the same circumstances as case law.