Duty to warn

A duty to warn is a concept that arises in the law of torts in a number of circumstances, indicating that a party will be held liable for injuries caused to another, where the party had the opportunity to warn the other of a hazard and failed to do so.

History

Two landmark legal cases established therapists' legal obligations to breach confidentiality if they believe a client poses a risk to himself or others. The first one was Tarasoff v. Regents of the University of California where a therapist failed to inform a young woman and her parents of specific death threats made by a client. The other case was Jablonski by Pahls v. United States which further extended the responsibilities of duty to warn by including the review of previous records that might include a history of violent behavior.

Product liability
Main article: Product liability

The duty to warn arises in product liability cases, as manufacturers can be held liable for injuries caused by their products if the product causes an injury to a consumer and the manufacturer fails to supply adequate warnings about the risks of using the product (such as side effects from pharmacy prescriptions) or if they fail to supply adequate instructions for the proper use of the product (such as a precaution to use safety glasses when using a drill).[1] If the manufacturer fails to supply these warnings, the law will consider the product itself to be defective.

A lawsuit by a party injured by a product, where the manufacturer failed to properly warn, is usually brought as a "negligence" action, but it could be filed as a "strict liability" claim or as a "breach of warranty of merchantability" case.[2]

Not long after launching its Note 7 in August 2016, Samsung got many reports of burning phones. Samsung had no choice other than recalling all the Galaxy Note 7, which had cost the company around $5.3bn.[3] Following the recall, the Federal Aviation Administration prohibited people from turning Galaxy Note 7 on, packing it in the checked luggage, and charging it while on the plane.[4] On October 11, 2016 Samsung stopped the production and issued a warning for people to turn the Galaxy Note 7 off and to not use it any longer. Samsung also told all of its global partners to stop selling the phone because of concerns about the product's safety.[5] After testing 200,000 devices and 30,000 batteries, Samsung found that the overheating and the burning phones was resulted from the error in designing and manufacturing the batteries of its two suppliers.[6] At the press statement in South Korea, the Samsung representative concluded, “We are taking responsibility for our failure to identify the issues arising out of the battery design and manufacturing process prior to the launch of the Note 7.”

An issue in product liability cases is whether the product warranted a duty to warn about known dangers.[7]

In the popularized Liebeck v. McDonald's Restaurants case where the individual Liebeck sued McDonald's for damages for injuries due to spilling hot coffee on her lap. McDonald's was cited not to have properly warned consumers about the inherent danger of their coffee product.[8] In addition, McDonald's was aware of previous injuries from hot coffee injuries and had not properly warned the consumers, which resulted in the court awarding Liebeck $640,000 in damages, which was later settled for an undisclosed amount.[9]

Property ownership
Warning signs such as those depicted in the image are often used to warn visitors of potential hazards.
Main article: Public liability

Most notably, a property owner has a duty to warn persons on the property of various hazards, depending on the status of the person on the property. For example, the property owner must warn an anticipated or discovered trespasser of deadly conditions known to the property owner, but that would be hidden from the trespasser. The property owner must warn licensees of all known hazards (whether deadly or not), and must warn invitees of all dangers that the property owner can discover through a reasonable inspection of the property.[10][11]

Clinical psychology and psychiatry
See also: Involuntary commitment, Obligatory Dangerousness Criterion, and Duty to protect

In clinical psychological practice in the United States, duty to warn requires a clinician who has reasonable grounds to believe that a client may be in imminent danger of harming himself or others to warn the possible victims.[12] Duty to warn is among the few exceptions to a client's right to confidentiality and the therapist's ethical obligation to maintain confidential information related in the context of the therapeutic relationship. In the American Psychological Association's Ethical Principles of Psychologists and Code of Conduct, the therapist's duty to warn is implicitly contained within the guidelines for disclosure of confidential information without the consent of the client: "Psychologists disclose confidential information without the consent of the individual only as mandated by law, or where permitted by law for a valid purpose such as to … protect the client/patient, psychologist, or others from harm."[13] In situations when there is cause for serious concern about a client harming someone, the clinician must breach confidentiality to warn the identified victim/third party about imminent danger.[14] Although laws vary somewhat in different states, in general, the danger must be imminent and the breach of confidentiality should be made to someone who is in a position to reduce the risk of the danger.[12] People who would be appropriate recipients of such information would include the intended victim and law enforcement.

Duty to warn is embedded in the historical context of two rulings (1974 and 1976) of the California Supreme Court in the case of Tarasoff v. Regents of the University of California.[15][16] The legal case was brought by the Tarasoff family after their daughter, Tatiana Tarasoff, was murdered by Prosenjit Poddar, who had received psychological services in the university counseling center. Poddar had made it known to his psychologist, during a session, that he wanted to kill Tarasoff, and his psychologist informed the campus police, following the session, of the danger that Poddar posed to himself and others and suggested that hospitalization might be necessary. The psychologist also wrote a letter requesting assistance to the chief of campus police. Upon investigation by the police, during which Poddar was briefly detained for questioning, he was released because his mental state seemed to be stable and rational. Shortly thereafter, the director of the department of psychiatry at Cowell Hospital asked for the police to return the letter and ordered that Poddar's therapy notes should be destroyed. No one ever warned Tatiana Tarasoff. Poddar killed Tatiana Tarasoff on October 27, 1969, and her parents filed suit against several of the organizations and individuals who had been involved. The case was initially dismissed by a lower court, but her parents appealed to the California Supreme Court, which upheld the appeal in 1974 and reaffirmed the ruling in 1976. The case was settled out of court when Tarasoff's parents received a substantial sum of money.

Explicit in the court's decision was the principle that the confidentiality of the therapeutic relationship is subordinate to the safety of society and its members.[16] Despite the value and importance of protecting the client and their feelings, and thus the physician-client relationship, the court decided that the clinician's duty to society as a citizen of that society places certain limitations on the clinician's loyalty to a client's secrets, divulged in the context of the therapeutic relationship.

Some have decried the court's decision as a limitation of the foundation for the therapeutic relationship and progress, the client's expectation of confidentiality. Max Siegel, a former president of the American Psychological Association, defended the therapist's right to confidentiality as sacrosanct, under any circumstances.[17] Furthermore, he suggested that had Poddar's psychologist maintained confidentiality, instead of alerting the police, Poddar might have remained in counseling and Tarasoff's death might have been averted through Poddar's psychological treatment. Limitations to confidentiality are a critical concern for clinicians, because a relationship of trust between the therapist and client is the prerequisite context for therapeutic growth.[16] Without the client's expectation that the therapist will honor the client's confidences divulged in the therapeutic dialogue, the client will not have the freedom to unveil the most troublesome and private issues that are matters of the utmost concern and need for intervention. Some argue that if clients cannot depend on confidentiality in all matters that are related in therapy, potentially dangerous clients, who may be most in need of psychological services, will avoid therapy, thus missing the opportunity for intervention.[12] If a trend of restrictions on confidentiality develops in legislation, some argue that the ability of therapists and counselors to effectively practice and facilitate clients' growth may be significantly impaired.

Other cases similar to the issues addressed in the Tarasoff case have been brought to the attention of the courts, such as the Jablonski by Pahls v. United States. The conclusion of that case extended the responsibility entailed in the duty to warn with the judgment that the clinician may be liable for failure to review previous records, which may contain a history of previous violent behavior, a predictor of potential future violence.

Recent consideration of applying the duty to warn has raised questions regarding therapists' responsibility to breach confidentiality in order to report clients' nonviolent behaviors which may pose danger to others, as in the case of clients with HIV/AIDS.[12] Clients with HIV/AIDS who are sexually promiscuous or share needles may pose risks to their companions, who may be unaware of the client's health condition. Although the possibility of infection that may result is a factor of concern, the duty to warn currently does not prescribe breaking confidentiality in these cases. In such cases, there may be uncertainty regarding potential victims and, perhaps, ignorance about the occurrence of behaviors that would pose the danger of transmission. Furthermore, many states prohibit the disclosure of information about HIV/AIDS.

The application of duty-to-warn laws places clinicians in the uneasy situation of breaching the client's confidentiality or of placing others in potential danger of the client. In either case, the therapist's decision may make place himself at risk, professionally and legally, especially since the clinician has no certain method for determining a client's potential for violent behavior. The application of the principle may be difficult in particular situations; however, if the clinician has reasonable cause to think that danger is imminent, the clinician is required to break confidentiality for the safety of others.

Criminal activity

Website users

In Jane Doe No. 14 v. Internet Brands, Inc., the Jane Doe plaintiff alleged that Internet Brands, Inc.'s failure to warn users of its networking website, modelmayhem.com, caused her to be a victim of a rape scheme. She alleged that defendant Internet Brands knew about the rapists but did not warn her or the website's other users. She filed an action against Internet Brands alleging liability for negligence under California law based on that failure to warn. On May 31, 2016, the US Court of Appeals for the 9th Circuit ruled that the Communications Decency Act does not bar Jane Doe's failure to warn claim.[18]

Jane Doe v. Metropolitan Toronto (Municipality) Commissioners of Police

In the early morning hours of August 24, 1986, a woman who lived in a second-floor apartment in Toronto was raped at knifepoint by Paul Callow, who had broken into her apartment from a balcony. At the time, the plaintiff was the fifth victim of similar crimes by Callow, who would become known as the "balcony rapist". In 1998, this woman was successful in her lawsuit against the Metropolitan Toronto Police Force for damages on the grounds that the police force had conducted a negligent investigation and failed to warn women of the risk of an attack by Callow.[19]

Jane Doe v. Royal Newfoundland Constabulary

In December 2012, a woman, who later became a Jane Doe plaintiff, was attacked by Sofyan Boalag, an Algerian immigrant, in St. John's, Newfoundland. This assault was the last of six assaults between September and December 2012. Boalag was charged with 23 criminal offences in relation to complaints from multiple victims. In 2016, he was convicted of multiple offenses including robbery, three counts of sexual assault with a weapon, and choking Doe until she passed out.

In January 2016, Doe commenced a lawsuit against the Royal Newfoundland Constabulary, alleging police failed to properly warn the public that a predator was stalking young women. According to the statement of claim, all of the attacks took place in a similar part of the city and involved people with similar characteristics — six young women, including one girl under 16 years of age.[20][21]

College and university students
Main article: Clery Act

In 1986, 19-year-old Jeanne Clery was raped and murdered in her Lehigh University dorm room. Her parents noted:

  • the lack of information provided to students and families about the rapid increase of violent and non-violent incidents on campuses
  • the failure of university administrators to warn students and the public[22]

Because her parents' efforts, the Clery Act was enacted which requires colleges and universities in the United States to publish campus crime reports.[23]

In 2008, Eastern Michigan University was fined $357,500 for violating the Clery Act.[24][25] US federal officials cited the university for "an egregious violation" for failing to notify the public of the murder of Laura Dickinson in her residence hall room.[26]

Drivers traveling through "smash and grab" hot spots

The South African Police Service and community groups publish the locations which are prone to "smash and grab" crimes. At these "hot spots", criminals smash through car windows to grab valuables while vehicles are stationary at traffic lights or stuck in slow moving traffic.[27]

See also

References
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  2. "Product Liability Theories". www.justinian.com. Retrieved 2020-04-11.
  3. "Samsung probe blames batteries for fires". BBC News. 2017-01-23. Retrieved 2020-04-12.
  4. Jansen, Bart. "Samsung Galaxy Note 7 banned on all U.S. flights due to fire hazard". USA TODAY. Retrieved 2020-04-12.
  5. "Samsung Will Ask All Global Partners to Stop Sales and Exchanges of Galaxy Note7 While Further Investigation Takes Place". Samsung. October 11, 2016. Retrieved 14 October 2016.
  6. Moynihan, Tim (2017-01-23). "Samsung Finally Reveals Why the Note 7 Kept Exploding". Wired. ISSN 1059-1028. Retrieved 2020-04-12.
  7. Gershonowitz, Aaron (1987-01-01). "The Strict Liability Duty To Warn". Washington and Lee Law Review. 44: 71–107 – via Washington and Lee.
  8. "Liebeck v. McDonald's | The American Museum of Tort Law". 2016-06-13. Retrieved 2020-03-25.
  9. Castillo, Joel González (2012). "Products Liability in Europe and the United States / Responsabilidad Por Productos Defectuosos en Europa y Estados Unidos". Revista Chilena de Derecho. 39 (2): 277–296. ISSN 0716-0747. JSTOR 41803513.
  10. Fleming James Jr. (December 1953), "Tort Liability of Occupiers of Land: Duties Owed to Trespassers", Yale Law Journal, The Yale Law Journal Company, Inc., 63 (2): 144–182, doi:10.2307/793464, JSTOR 793464
  11. Schubert, Frank August (2014), "The law of torts", Introduction to Law and the Legal System (11th ed.), Cengage Learning, ISBN 9781305143029
  12. Tribbensee, Nancy E.; Claiborn, Charles D. (2003). "Confidentiality in psychotherapy and related contexts". In O'Donohue, William T.; Ferguson, Kyle E. (eds.). Handbook of professional ethics for psychologists: issues, questions, and controversies. Thousand Oaks, CA: Sage Publications, Inc. pp. 287–300. ISBN 978-0-7619-1188-3. OCLC 50519066.
  13. American Psychological Association (2016). "Ethical Principles of Psychologists and Code of Conduct: Including 2010 and 2016 Amendments". American Psychological Association. 4.05(b). Retrieved May 5, 2017.
  14. Corey, Gerald Corey; Corey, Marianne Schneider; Callahan, Patrick (2007). Issues and Ethics in the Helping Professions (7th ed.). Belmont, CA: Brooks/Cole/Thomson Learning. ISBN 978-0-534-61443-0. OCLC 65465556.
  15. Simon, Robert I. (2001). Concise Guide to Psychiatry and the Law for Clinicians. Concise guides (3rd ed.). Washington, DC: American Psychiatric Publishing. ISBN 978-1-58562-024-1. OCLC 45202323.
  16. Everstine, Louis; Everstine, Diana Sullivan; Heymann, Gary M.; True, Reiko Homma; Frey, David H.; Johnson, Harold G.; Seiden, Richard H. (2003). "Privacy and confidentiality in psychotherapy". In Bersoff, Donald N. (ed.). Ethical conflicts in psychology (3rd ed.). Washington, DC: American Psychological Association. pp. 162–164. ISBN 978-1-59147-050-2. OCLC 51984809.
  17. Siegel, M (April 1979). "Privacy, ethics, and confidentiality". Professional Psychology. 10 (2): 249–258. doi:10.1037/0735-7028.10.2.249. PMID 11661846.
  18. "Jane Doe No. 14 v Internet Brands" (PDF). United States Court of Appeals for the 9th Circuit. Retrieved 18 September 2016.
  19. "Jane Doe v. Metropolitan Toronto (Municipality) Commissioners of Police [1998] 39 O.R. (3d) 487". CanLii.org. Ontario Court of Justice. July 3, 1998. Retrieved 12 October 2016.
  20. "Survivor of St. John's sexual assault suing police and province for failing to warn public a predator was lurking". National Post. 2016-09-18. Retrieved 18 September 2016.
  21. Glenn Payette; Lukas Wall. "Woman says Sofyan Boalag raped her 'for your pleasure and mine'". Canadian Broadcasting Corporation. Retrieved 18 September 2016.
  22. "Our History - Clery Centre". Clery Center. Retrieved 9 October 2016.
  23. "20 U.S. Code § 1092 - Institutional and financial assistance information for students". (a)(1)(o): Cornell Law. Retrieved 9 October 2016.CS1 maint: location (link)
  24. Sara Lipka (January 11, 2008). "Education Dept. Imposes Largest Fine Yet for Campus Crime-Reporting Violation". The Chronicle of Higher Education. Retrieved 11 October 2016.
  25. CS Staff (June 8, 2008). "Eastern Michigan University Agrees to Pay Largest Ever Clery Act Fine of $350,000". Campus Safety. Retrieved June 30, 2017.
  26. Larcom, Geoff (2008-06-06). "Eastern Michigan University to pay $357,500 in federal fines over Laura Dickinson case". The Ann Arbor New. Retrieved 2008-08-01.
  27. Staff Writer (August 31, 2016). "Smash and grab hotspots in Joburg, Pretoria, Durban and Cape Town". BusinessTech. Retrieved 22 October 2016.
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