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April 9, 1981

Harrison F. LEEDY and Gertrude H. Leedy, his wife, Plaintiffs,
John J. HARTNETT, and Lebanon Veterans Administration Hospital, Defendants

The opinion of the court was delivered by: MUIR

This case arose out of an assault upon the Plaintiffs allegedly by one John J. Hartnett, now deceased. The Plaintiffs' claim against the Lebanon Veterans Administration Hospital arises under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. The Court has jurisdiction pursuant to 28 U.S.C. § 1346. The Plaintiffs allege that the Veterans Hospital was negligent in failing to warn the Leedys of Hartnett's alleged violent tendencies. To the claim against the Veterans Hospital, the Plaintiffs have appended the common law claim of assault and battery against Hartnett's estate with jurisdiction presumably based on the doctrine of pendent jurisdiction as no other basis of jurisdiction is alleged in the amended complaint. Pending before the Court is a motion by the attorney representing Hartnett's executor to withdraw from the case and a motion by the Veterans Administration Hospital for summary judgment. For the following reasons, the Court will grant the motions. In addition, because there is no independent basis of jurisdiction over the Plaintiffs' claim against Hartnett's estate, that claim will be dismissed for lack of subject matter jurisdiction.

The attorney representing Hartnett's estate seeks to withdraw from the case on the ground that the estate is insolvent. The executor of the estate has concurred in the request that counsel be permitted to withdraw. The time within which Plaintiffs were to file an opposing brief expired on March 30, 1981 and to date no opposing brief has been filed; consequently, the motion is deemed to be unopposed. Local Rule of Court 401.6. While ordinarily the Court would not permit withdrawal of counsel prior to the entry of an appearance by new counsel, that procedure is not appropriate in this case. It is not desirable to require counsel to continue to serve when there exists no chance of his being compensated for his services and because of the insolvency of the estate there is no reason to expect any other counsel to undertake to represent it; consequently, the motion to withdraw will be granted.

 The facts insofar as they are relevant to the hospital's motion for summary judgment are not substantially disputed. To the extent that there are disputes as to material facts, the Court will for the purposes of this motion assume as true the Plaintiffs' factual contentions.

 John Hartnett was a disabled veteran of the Korean War. From 1956 through March 1978 he had been a patient at the Lebanon Veterans Administration Hospital on more than 20 occasions. During most of those hospitalizations, he was treated for paranoid schizophrenia and chronic alcoholism. Although at one time Hartnett may have been involuntarily committed, during the times relevant to this action he was a voluntary patient at the hospital. It is the Plaintiffs' contention that Harrison Leedy met Hartnett in Leedy's capacity as a service officer of the Lebanon Veterans of Foreign Wars in 1974. Leedy performed various services for Hartnett such as offering him rides, companionship, and the like. This relationship between Hartnett and Leedy was known to personnel of the hospital.

 Throughout his course of treatment at the hospital, its personnel were aware of a history of violent outbursts by Hartnett with incidents spanning at least 10 years. Medical personnel at the hospital had since at least 1977 diagnosed Hartnett as being aggressive, impulsive, and exhibiting unstable behavior caused in large part by his alcoholism and his continued drinking in spite of that condition.

 On March 31, 1978, the Plaintiffs and Hartnett went to the Myerstown Veterans of Foreign Wars Club to celebrate Hartnett's birthday. During the course of the evening, Mrs. Leedy had two or three mixed drinks, Mr. Leedy had six or seven small bottles of beer and Hartnett drank approximately 24 12-oz. bottles of beer. At approximately 2:00 A.M. the next morning, they left the club and went to the Leedys' residence. After their return, Hartnett drank several more bottles of beer and took 400 milligrams of Thorazine. At some time during that night the Leedys were beaten. The police investigation revealed that there had been no forced entrance into their home. The Plaintiffs did not see who had assaulted them and apparently were not aware of the assault until they awoke on April 1, 1978.

 It is the position of the Leedys that Hartnett assaulted them and that the hospital owed to them a duty to warn them of Hartnett's alleged assaultive tendencies and that the breach of that duty was a substantial cause of the assault inflicted on them by Hartnett. The hospital takes the position that the Plaintiffs have failed to present enough evidence that it was in fact Hartnett who assaulted them. It also contends that even if Hartnett did assault the Plaintiffs, the hospital owed no duty to the Leedys to warn them of any danger Hartnett might have posed. The hospital also contends that as a matter of law the Leedys assumed the risk of injury by Hartnett and that assuming the hospital was negligent, as a matter of law, the Leedys' negligence was greater than that of the hospital, thereby precluding any award of damages to the Leedys.

 The Court concludes that the Leedys have presented sufficient evidence to withstand summary judgment based on the hospital's claim that Hartnett did not commit the assaults but that as a matter of law the hospital owed no duty to warn the Leedys of any danger posed by Hartnett. In light of that determination, there is no need to reach the hospital's latter two arguments. In order to facilitate any review of the Court's disposition of this case, however, the Court concludes that material issues of fact are in dispute as to those defenses thereby precluding summary judgment on those grounds.

 There is sufficient circumstantial evidence to create a question for the fact finder whether Hartnett assaulted the Plaintiffs. That evidence is Hartnett's presence in the Leedys' house on the night of the assault, the lack of forced entry, and certain statements made by Hartnett after the assault. The hospital, therefore, is not entitled to summary judgment on the ground that Hartnett did not assault the Plaintiffs.

 The Federal Tort Claims Act requires the Court to apply the law of the place where the act or omission complained of occurred. 28 U.S.C. § 1346(b). In this case, therefore, the Court must apply the law of the Commonwealth of Pennsylvania. The question presented by the Plaintiffs as to the hospital's duty to them appears to be one of first impression in Pennsylvania. Plaintiffs' theory of liability is that because of the hospital's relationship to Hartnett, which was essentially that of psychiatrist to patient, the hospital owed to the Leedys a duty to warn them of Hartnett's alleged violent tendencies. This theory of liability has been adopted to a certain extent by the states of California, New Jersey, and Florida. The United States District Courts for the Districts of North Dakota and Nebraska have held that such would be the law in those states. Tarasoff v. Regents of the University of California, 17 Cal.3d 425, 551 P.2d 334, 131 Cal. Rptr. 14 (1976); McIntosh v. Milano, 168 N.J.Super. 466, 403 A.2d 500 (1979); Department of Health and Rehabilitative Services v. McDougall, 359 So.2d 528 (1978) (Fla.); The Merchants National Bank & Trust Company of Fargo v. United States, 272 F. Supp. 409 (D.N.D.1967); Lipari v. Sears, Roebuck & Co., 497 F. Supp. 185 (D.Neb.1980). The most complete statement of the rationale behind this legal theory is that given by the California Supreme Court in Tarasoff.

 In Tarasoff, the Supreme Court of California was faced with the following factual situation. The patient of the defendant psychotherapists killed a woman two months after he had confided to his psychotherapists his intention to kill that particular woman. The California Court began its analysis by noting that as a general rule a defendant owes a duty of care to all persons who are foreseeably endangered by his conduct with respect to all risks which make the conduct unreasonably dangerous. The Court noted that under Restatement (Second) of Torts § 315, when the avoidance of foreseeable harm requires a defendant to control the conduct of another person, or to warn of such conduct, liability is imposed only if the defendant bears some special relationship to the dangerous person or to the potential victim. The Court held that the relationship of psychotherapist to his patient satisfies that requirement. Under those facts, the Court, far from imposing a broad duty on therapists, held that plaintiffs could state a cause of action by "asserting that the therapists in fact determined that Poddar presented a serious danger of violence to Tatiana, or pursuant to the standards of their profession should have so determined, but nevertheless failed to exercise reasonable care to protect her from that danger." Tarasoff v. Regents of University of California, 17 Cal.3d 425, 450, 551 P.2d 334, 131 Cal. Rptr. 14 (1976).

 The California Supreme Court has refused to extend the rationale of Tarasoff. In Thompson v. County of Alameda, 167 Cal.Rptr. 70, 27 Cal.3d 741, 614 P.2d 728 (1980), the Court was confronted with a claim against a county alleging negligence in releasing from custody a juvenile delinquent who was known to have dangerous and violent propensities toward young children and who within 24 hours after being released sexually assaulted and murdered plaintiffs' son who resided in the community into which the juvenile was released. In rejecting the plaintiffs' contention that their complaint stated a cause of action, the Supreme Court of California emphasized that in Tarasoff there was a specifically foreseeable and identifiable victim. While the Court stated that the intended victim need not be specifically named, he must be "readily identifiable." Thompson v. County of Alameda, 27 Cal. 3d 741, 167 Cal.Rptr. at 70, 614 P.2d 728. The Court rejected the contention that as a neighborhood child the plaintiffs' decedent was a foreseeable victim of the released juvenile. In circumstances in which an individual poses a risk of danger to a significant portion of the community the Court declined to impose any duty to give warnings primarily because it determined that the value of such warnings was not great. In Tarasoff the warnings were directed at making the victim aware of the danger to which she was "uniquely exposed." The threatened target was "precise." In such a case, it is "fair to conclude that warnings given discretely and to a limited number of persons would have a greater effect because they would alert those particular targeted individuals to the possibility of a specific threat pointed at them." Thompson v. County of Alameda, 27 Cal. 3d 741, 167 Cal.Rptr. at 70, 614 P.2d 728. In contrast to that situation, the case presented in Thompson was one in which there was a need to give warnings to a broad segment of the population and the warnings could be only general in nature because no specific threat had been made. Under those circumstances, the Court found that such warnings because of their necessary generality could not be expected to "stimulate increased safety measures."

  The New Jersey case of McIntosh v. Milano, 168 N.J.Super. 466, 403 A.2d 500 (1979), which relied heavily on the California Supreme Court's decision in Tarasoff, also involved a situation where it was clear to the psychiatrist that his patient posed a particular threat to the decedent. In McIntosh the patient had reported numerous fantasies about the decedent and the psychiatrist knew that he ...

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