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decided: September 28, 1983.


No. 81-3-437 Petition for Review of the Order dated the 24th Day, April, 1981 by the Commonwealth Court of Pennsylvania at No. 42, T.D. 1979. Petition for Allowance of Appeal Granted July 20, 1981 at No. 272 E.D. Misc. Docket 1981, 59 Pa. Comwlth. 1, Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. 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.

Author: Flaherty

[ 502 Pa. Page 243]


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.

[ 502 Pa. Page 244]

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 Page 244} 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. Commw. 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).

[ 502 Pa. Page 245]

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. Page 245} 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:

[ 502 Pa. Page 246]

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 Page 246} 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 Opinion of Mr. Justice Nix). Under the analysis of "legal cause" set forth in the Restatement of Torts, Second and adopted 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

[ 502 Pa. Page 247]

    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.*fn1

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,

[ 502 Pa. Page 248]

    according to Prosser, even when the indemnitee is not free from active fault.*fn2

[ 502 Pa. Page 249]

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.*fn3 This reasoning, by

[ 502 Pa. Page 250]

    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, ...

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