# Flt:E"" ,/IN CLERKS OFFICE 1iF111!MECOURT, .STAT!! OFWASHINGTON This opinion was filed•for record. at 

# e).-006-M on

# W.J2J..lll)l~ 

# C**~** Vepulj ¢;;: r SUSAN L. CARLSON SUPREME COURT CLERK


### IN THE SUPREME COURT OF THE STATE OF WASHINGTON

BEVERLY R. VOLK, as guardian for Jack Alan Schiering, a minor; and as personal representative ofthe Estates ofPhilip Lee Schiering and Rebecca Leigh Schiering; and on behalfofthe statutory beneficiaries ofphilip Lee Schiering; and BRIAN WINKLER, individually, ) ) ) ) ) ) ) ) ) Respondents/Cross-Petitioners, )


### v. ) 

### ) ) JAMES B. DEMEERLEER, as ) personal representative ofthe Estate ) ofJan DeMeerleer; HOWARD ) ASHBY, M.D., and JANE DOE ) ASHBY, husband and wife, and the ) marital community composedthereof;) SPOKANE PSYCHIATRIC CLINIC,) P.S., a Washington business entity ) and health care provider; and DOES 1 ) through 5, ) ) Petitioners/Cross-Respondents. )



# _____________________ ) No. 91387-1

ENBANC

Filed



### ----------------------

FAIRHURST, 

### J.-Jan DeMeerleermurderedRebecca Schiering andhernine year old son Philip and attempted to murder Schiering's older son, Brian Winkler. ' I

### Volkv. DeMeerleer, No. 91387-1 Afterthe attack, DeMeerleercommitted suicide. DeMeerleerhadbeen anoutpatient ofpsychiatrist Dr. Howard Ashby for nine years leading up to the attack, during whichtime he expressed suicidal andhomicidal ideationsbutnevernamed Schiering

orherchildren as potential victims. We mustdecide whether Ashby, a mental health professional, owed DeMeerleer's victims a duty of care based on his relationship with DeMeerleer. WeholdthatAshby and DeMeerleer shared a special relationship and that special relationship required Ashby to act with reasonable care, consistent with the standards ofthe mental healthprofession, to protectthe foreseeable victims ofDeMeerleer. Ashby concedes the existence ofa special relationship betweenhim and DeMeerleer. The foreseeability ofDeMeerleer's victims is a question offact appropriately resolved by the fact finder. Accordingly, we affirm the Court of Appeals in part and reverse the trial court's summary judgment dismissal ofthe medical negligence claim. I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY A. Factual background Ashby began treating DeMeerleer at the Spokane Psychiatric Clinic PS (Clinic) in September2001. DeMeerleerhadpreviouslybeendiagnosedwithbipolar disorder and associated disorders. Ashby's notes from the initial meeting show that in 1992 DeMeerleer was hospitalized for two weeks because of suicidal ideation. Following his
2

### Volin. DeMeerleer, No. 91387-1 hospitalization, DeMeerleer began a medication regimen that included Depakote, a medication meant to treat manic episodes ofhis bipolar disorder, but DeMeerleer ceased taking the medication soon after. In 1996, DeMeerleer married his wife, Amy. In 1997, DeMeerleer again began having suicidal ideations, at which time he soughtoutpatienttreatment. DeMeerleerwas againprescribedDepakotebutstopped taking it because he disliked the side effects. Around that time, DeMeerleer evidenced grandiose behavior resulting in job loss and also experienced selfprofessed suicidal and homicidal ideations. DeMeerleer stated that he had played Russian roulette and at one point he lay on train tracks hoping to be decapitated. Ashby noted DeMeerleer's history of"poorcompliance" with his medication regimens as well as the observation that DeMeerleer's stressors includedjob loss. Clerk's Papers (CP) at 239. Ashby started DeMeerleer on another regimen of Depakote to treat his bipolar disorder and noted that monitoring compliance would be necessary. DeMeerleer provided a written submission to Ashby where he personally described his condition as follows:

•Despises lessercreatures; no remorse for my actions/thoughtsonother living creatures. •Delusional and psychotic beliefs argued to the point ofverbal abusive [sic] and fighting. •No need for socialization; in fact, prefers to psychotically depopulate the world (i.e. "do YourPart" [CYP] terrorist philosophies). •Wants to destroy; pounds on computer keyboard, slams phone receiver, swings fists. •

Has no use for others; everyone else in world is useless.
3Vollrv. DeMeerleer, No. 91387-1 •Reckless driving; no fear ofdanger in any circumstance, even "near misses." •

Acts out fantasies ofsex with anyone available. CP at 85 (second alteration in original). Amy DeMeerleer also provided written infonnationregarding DeMeerleer's condition where she stated: •Makes mistakes on projects (i.e. breaking something) and quickly moves into dangerous rage; actually easily slips into depression after this type oftrigger. •Severe lack of sleep coupled with dreams of going on killing or shooting sprees. •Drives automobiles very fast (atleast 20 to 30

### MPH above speedlimit) without seat belt while showing no fear at all when in dangerous situations; applies even with child in car. •

Expresses severe "road rage" at other slower drivers, even as a passenger (he'sNOT driving). •Has an "All orNothing" attitude; will actually verbally express "Live or Die!" CP at 85-86. In2003, DeMeerleerlearnedhis wife washaving an affair. DeMeerleer'swife divorced him shortly after. Duringthis time, DeMeerleer suffered severe depression and expressed suicidal andhomicidalthoughts. DeMeerleerassuredAshbyhe would not act on the thoughts, and Ashby took no additional steps outside ofcontinuing medication and support. DeMeerleer admitted to confronting his ex-wife's new boyfriend. DeMeerleer also admitted to having grudge or revenge thoughts and fantasies following his divorce, butAshby'snotes did not state an identifiabletarget ofthe thoughts.



### 4

### Volkv. DeMeerleer, No. 91387-1 In 2005, DeMeerleerinformedAshby thathe hadbegun a serious relationship with Schiering. Schieringwas the motheroftwin sonsPhilip andJack Schiering and Brian Winkler. This same year, DeMeerleer began evidencing volatile behavior, particularly after an incident in which his truck was vandalized. DeMeerleer took two loaded firearms and ammunition to the location ofthe vandalism and waited for the thieves to return so he could exact some form ofretribution. This prompted DeMeerleer'sfamily to intervene andremovethe firearms from DeMeerleer'shome. DeMeerleer's mother also informed Ashby that DeMeerleer's thoughts had progressed from suicidal to homicidal. DeMeerleer'srelationship with Schieringandherchildrenprogressedrapidly, and within the first yearhe had fallen deeply in love with Schiering andher children often calledDeMeerleer "dad." CP at 196. In 2009, Schieringbecamepregnantwith DeMeerleer's child. DeMeerleer and Schiering were initially excited about the prospect ofhaving the child; however, after DeMeerleer struck Jack, Schiering's nine year old autistic son, Schiering moved herself and her children out of DeMeerleer's home and terminated the pregnancy. Around this time, DeMeerleer

was also laid offfrom hisjob. DeMeerleer contacted the Clinic in serious distress, at which time the Clinic referred DeMeerleerto community-basedmental health clinics and encouragedhim to call back if the referrals proved unsuccessful. Roughly one month after
5Volk v. DeMeerleer, No. 91387-1 DeMeerleer contacted the Clinic, Schiering read e-mails between DeMeerleer and his mother that discussed Schiering and her children in a negative light. This worsenedthe divide betweenDeMeerleer and Schiering. In April2010, DeMeerleermet with Ashby for what would be the final time. Despite whatwas occurringinhis life, DeMeerleertoldAshbyhe was stable. Atthis meeting, however, DeMeerleeralso statedhe washaving suicidal ideationbutwould not act on it. Ashby noted that DeMeerleer's mood was unstable but chose to continue DeMeerleer's medication regimen and took no additional action. Ashby's clinical notes from that meeting stated: Jan indicates that his life is stable, he is reconstituting gradually with his fiance[e]. They are taking marriage classes, he can still cycle many weeks atatime. Rightnowhe is in an expansive, hypomanicmood,but sleep is preserved. He has a bitmore energy and on mental status, this shows through as he is a bit loquacious but logical, goal oriented and insight andjudgment are intact. He states when depressed he can get intrusive suicidal ideation, notthathe would act onitbutitbothershim. Atthis point it's not a real clinical problem butwe will keep aneye on it. Plan: We will continue Risperdal, Depakote and [bupropion]. CP at234. Although DeMeerleer and Schiering briefly mended their relationship, at which time DeMeerleer's mental condition improved, on July 16, 2010 Schiering ended their relationship for good. DeMeerleer did not attempt to contact Ashby or the Clinic.
6

### Volkv. DeMeerleer, No. 91387-1 During the night of July 17, 2010, or the early morning ofJuly 18, 2010, DeMeerleerentered Schiering'shome. DeMeerleer shotandkilled Schieringandher

son Philip. DeMeerleer also attempted to slash the throat ofWinkler, but Winkler

was able to escape and summon help. Following the attack, DeMeerleerreturnedto his home where he took his life. B. Procedural history Schiering's mother, Beverly Yolk, and Schiering's older son, Winkler (hereinafter referred to as Yolk), filed medical malpractice and medical negligence claims against Ashby and the Clinic, alleging they failed to follow the accepted standard of care for a psychiatrist and psychiatric clinic "providing mental health/psychiatric services in Washington." 1

### CP at 31. Ashby denied violating any standard ofcare, andhe and the Clinic moved for summaryjudgment on the basis that the attack was not foreseeable and that Ashby did not owe DeMeerleer'svictims a duty ofcare. Despite Ashby's concessionthat a special relationship sufficient to satisfy 

### Petersen2 

### existed between him and

1Volk also sued DeMeerleer's estate. The superior court consolidated Yolk's suits against DeMeerleer's estate, Ashby, and the Clinic. 2Petersen v. State, 100 Wn.2d421, 671 P.2d 230 (1983). Relying onRestatement (Second) ofTorts§ 315(a) (Am. Law Inst. 1965), we stated in Petersen that there is a duty to act for the potential victim ofa psychiatric patient when "aspecial relation exists between the actor and the thirdperson which imposes a duty upon the actor to control the third person's conduct." Id. at 426 (quoting RESTATEMENT § 315(a)). In that context, the actor would be the mental health professional andthe thirdpersonwouldbe the mental healthpatient. Stated another way, pursuant to Restatement § 315 and Petersen, once a special relation exists between the mental health 

### 7Volk v. DeMeerleer, 

### No. 91387-1 DeMeerleer, Ashby and the Clinic argued that Yolk was unable to establish the foreseeability of the attack without "an actual threat of violence against Jack Schiering, Philip Schiering, Rebecca Schiering or Brian Winkler." CP at 48. Ashby and the Clinic claimed that the only available actions were to have DeMeerleer civilly committed or to warn Schiering or authorities ofthe potential danger. Ashby and the Clinic claimed immunity for their failure to have DeMeerleer committed under RCW 71.05.120, and argued they had no duty to warn Schiering because DeMeerleer never communicated an '"actual threat ofphysical violence against a reasonably identifiable victim or victims."' CP at 54 (emphasis omitted) (quoting RCW 71.05.120(2)). To support their motion for summary judgment, Ashby and the Clinic proffered affidavits from several ofDeMeerleer's friends and family. The affidavits explained that no one with whom DeMeerleerhad interacted in the days leading up to the murders suspected he was having psychological issues, nor did they believe he was capable ofthe acts he perpetrated against Schiering and her sons. In response to Ashby and the Clinic's motion for summaryjudgment, Yolk maintained that Petersen 

### provided the duty thatpsychiatrists owe third parties once the psychiatrist and patient form a special relationship. The Petersen 

### duty, Yolk

professional and his patient, the mental healthprofessional owes a duty ofreasonable care to any foreseeable victim ofthe patient. 8Volk v. DeMeerleer, No. 91387-1 contended, requires psychiatrists to take reasonable precautions to protect anyone who might foreseeably be endangered by the dangerous propensities of the psychiatrist's patient. Yolk argued that Ashby and the Clinic breached a duty owed to Schiering and her sons by failing to perform risk assessments and intensive psychiatrictreatment onDeMeerleer. Yolk also positedthatthe medical malpractice claim embodied a "loss ofchancethe [attack] wouldn'thave occurredbased on loss of chance DeMeerleer would have had a better psychiatric outcome had he been treated properlyby [SpokanePsychiatric Clinic]." CP at 77. To oppose summary judgment, Yolk submitted an affidavit from forensic psychiatrist James Knoll, MD. Knoll opined that Ashby breached the requisite standard of care for psychiatrists in Washington by failing to inquire into DeMeerleer's suicidal thoughts and instead relying on DeMeerleer's self-reporting. Knoll further expressed that inquiry into DeMeerleer's mental state, including an adequate suicide assessment, may have revealed the threat so that further action could have been taken to prevent harm to Schiering and her sons. Knoll also explainedthatwhenpatients are suicidal, they oftenreveal homicidal thoughts upon further inquiry. According to Knoll, Ashby should have scheduled follow up appointments with DeMeerleer in the months leading up to the murders and, if Ashby hadproperly monitoredDeMeerleer, his condition may nothave digressedto the point that it did. Finally, Knoll stated that Ashby's negligent treatment was a 9Vollrv. DeMeerleer, 

### No. 91387-1 "causal and substantial factor" in bringing about the harm and the loss ofchance of

a better outcome. CP at 91. The trial court grantedAshby and the Clinic's motion for summaryjudgment. The trial court issued findings that stated Yolk failed to establish a genuine issue of material fact that DeMeerleer made actual threats ofharm directed at Schiering or her sons priorto the attack andthatAshbywas under no legal dutyto warn Schiering

or her sons priorto the incident. Yolk appealed, arguing both thatPetersen 

### was applicable and thatPetersen's 

### holding did not require actual threats to identifiable persons before a duty was imposed on the psychiatrist. Ashby and the Clinic asserted that Petersen's 

### duty conflicted with statutes limiting disclosure ofpatient information, and no duty to
warn or protectthird parties can be imposed on psychiatrists absent an actual threat to an identifiable victim. In a split decision, Division Three reversed the summary judgmentinpart. Volkv. DeMeerleer, 

### 184 Wn. App. 389, 337 P.3d 372 (2014). The Court ofAppeals reinstated Yolk's medical negligence claim, holdingPetersen 

### was applicable and Knoll's affidavit created genuine issues ofmaterial fact regarding whether Ashby and the Clinic breachedthe duty ofcare imposed by Petersen. Id. 

### at 434-35. However, the Court ofAppeals affirmed summaryjudgment as to the loss of chance portion ofthe medical malpractice claim. Id. 

### at 429-30. The Court of Appeals reasoned that loss of chance requires expert testimony stating actual 10

### Volk v. DeMeerleer, No. 91387-1 percentage oflost chance, which Knoll failed to provide. !d. The Court ofAppeals also affirmed summaryjudgment to the extent that Yolk's claims rested on Ashby andthe Clinic'sbreach on a failure to haveDeMeerleerinvoluntarilycommitted. !d. at 434. Ashby and the Clinic both petitioned for review ofthe Court of Appeals' holding that reinstated the medical negligence claim based on the 

### Petersen duty. Yolk answered both petitions and cross petitioned, seeking review ofthe Court of Appeals' decision to affirm dismissal ofthe loss ofchance claim. Ashby and the Clinic both answered Yolk's petition. We granted review on all issues. 

### Volk v. DeMeerleer, 183 Wn.2d 1007, 352 P.3d 188 (2015). II. ISSUE A. Does the 

### Restatement (Second) ofTorts§ 315 (Am. Law Inst. 1965) 

### (Restatement) duty applyinthe context ofoutpatientpsychiatric treatment? B. Did the Court of Appeals err by applying two differing levels of speculationto determine the admissibility ofexperttestimony? C. Does Washington's loss ofchance doctrine extend to nonpatient third parties? III. ANALYSIS A. When a

### Restatement 

### § 315 specialrelation exists, mental healthprofessionals owetheir outpatients' foreseeable victims a duty ofreasonable care Because the trial court granted summaryjudgmentin favor ofAshby and the Clinic, our overarching analysis concerns whether that grant was proper. When
11Vollcv. DeMeerleer, No. 91387-1 reviewing grants ofsummaryjudgment our review is de novo and we perform the

same inquiry as the trial court. AhaSheikh v. Choe, 156 Wn.2d 441, 447, 128 P.3d 574 (2006) (quoting Jones v. Allstate Ins. Co., 146 Wn.2d 291, 300, 45 P.3d 1068 (2002)). Summaryjudgmentis appropriate whenthere is "no genuine issue as to any material fact and
... the moving party is entitled to ajudgment as a matter oflaw." CR 56(c). When engaging in this inquiry, we construe all facts and all reasonable inferences "inthe light most favorable to the nonmoving party." Scrivener v. Clark Col!., 181 Wn.2d 439, 444, 334 P.3d 541 (2014) (citing Young v. KeyPharm., Inc., 112 Wn.2d 216,226,770P.2d 182 (1989)). 1. Restatement§315 special relation duty We begin by noting that Yolk's claim stemming from our Petersen decision is appropriately characterized as a medical negligence claim. As Yolkhas reiterated repeatedly, perhaps unartfully given the confusion surrounding the issue, the claim based on the Petersen duty is one ofmedical negligence, not medical malpractice. Thoughthe difference may seem subtle, medical malpractice imposes a duty on the medical professionalto actconsistentlywiththe standards ofthemedicalprofession, and the duty is owed to the medical professional'spatient. See Paetsch v. Spokane Dermatology Clinic, PS, 182 Wn.2d 842, 850, 348 P.3d 389 (2015). At common law, Washington does notrecognize a causeofactionformedical malpractice absent

aphysician/patientrelationship. SeeRistev. Gen. Elec. Co., 4 7 Wn.2d 680, 682, 289 12

### Volk v. DeMeerleer, No. 91387-1 P.2d 338 (1955). Pursuant to RCW 4.04.010, this common law approach is the law of Washington, and we have previously declined to adopt the view that medical malpractice suits are available to nonpatient third parties against physicians. 

### See Paetsch, 182 Wn.2d at 850 n.6. Volk fails to address this common law requirement. We therefore affirm the trial court's grant of summary judgment and reverse the Court ofAppeals to the extent that it held that summary judgment was improper regardingthe medical malpractice claims because neither Schieringnorher children

were Ashby's patients. 

### Restatement § 

### 315 imposes an alternate duty to that imposed by medical malpractice. The § 

### 315 duty, as articulated by this court in

### Petersen, is owed by the medical professional to a victim based on a special relationship betweenthe mental health professional and the professional's patient. 

### See Petersen, 100 Wn.2d at 428. The foreseeability ofthe victim, as well as what actions are required to fulfill this duty, is informed by the standards ofthe mental health profession. Id. 

### In Washington, "[t]he elements ofnegligence include the existence ofa duty to the plaintiff, breach ofthat duty, and injury to theplaintiffproximately caused by the breach." 

### Aba Sheikh, 156 Wn.2d at 447-48 (citing 

### Degel v. Majestic Mobile Manor, Inc., 129 Wn.2d 43, 48, 914 P.2d 728 (1996)). Generally, a person has no duty to prevent athirdparty from causingharmto another. 

### Hertogv. City of Seattle,

13

### Vollcv. DeMeerleer, No. 91387-1 138 Wn.2d 265, 276, 979 P.2d400 (1999) (citing 

### Taggart v. State, 118 Wn.2d 195, 218, 822 P.2d 243 (1992)). Section 315 ofthe 

### Restatement is an exception to the general common law rule ofnonliability for the criminal or tortious acts ofthird parties and defines a "special relation." 

### Petersen, 100 Wn.2d at 426 (citing 

### Lipari v. Sears, Roebuck & 

### Co., 497 F. Supp. 185, 188 (D. Neb. 1980); 

### Tarasoffv. Regents ofUniv. ofCal., 17 Cal. 3d425,435, 551 P.2d334, 131 Cal. Rptr. 14 (1976)). 

### Restatement§ 3153 states: Thereis no duty so to controlthe conductofathirdperson as to prevent him from causing physical harm to anotherunless (a) a special relation exists betweenthe actor andthethirdperson which imposes a duty upon the actor to control the third person's conduct, or (b) a specialrelation exists betweenthe actor andthe otherwhich gives to the other a rightto protection. Absent a special relationship, "the actor is not subject to liability ifhe fails, either intentionally orthrough inadvertence, to exercise his ability so to control the actions of third persons as to protect another from even the most serious harm." RESTATEMENT§ 315 cmt. b. This court has held that a special relationship exists under § 315, triggering the imposition ofa duty to protect against foreseeable dangers, on a showing that a definite, established, and continuing relationship exists between the defendant and

3Because no special relation existed between Ashby and Schiering and her children, this case must be considered under the Restatement § 315(a) and not (b). 

### 14

### Volin. DeMeerleer, 

### No. 91387-1 the third party. See Honcoop v. State, 

### 111 Wn.2d 182, 193,759 P.2d 1188 (1988) (citing Petersen, 

### 100 Wn.2d at 426-28; Tarasojf, 

### 17 Cal. 3d 435).4 

### This case requires us to consider what duty, if any, a private mental health professional (actor) owes to the putative foreseeable victim (other) of the professional's outpatient (third person). Petersen 

### is the most relevant analog to the present case. There, we held that once a mental health professional and a patient establish a relationship pursuant to Restatement § 

### 315, the professional "incur[s] a duty to take reasonable precautions to protect anyone 

### who might foreseeably be endangered by" the patient's condition. 5 

### Petersen, 

### 100 Wn.2d at 428 (emphasis added). Although we had previously recognized a cause of action in a medical negligence case when a doctor's patient injured a victim,6

### Petersen 

### provided us the

4The dissentmischaracterizesourholdinginHoncoop. Dissentat 6. InHoncoop, we simply held that regulatory control does not obviate the need for a "definite, established and continuing relationship betweenthe defendant and thethirdparty"to establish a special relationship described in Restatement§ 315. Ill Wn.2d at 193. We did not hold, as the dissent asserts, that control is determinative. !d. 5 Nothing in Petersen required the psychiatrist in that case to actually control the patient's actions. Instead, the psychiatrist was under a duty to "take reasonable precautions" in order to mitigate or prevent the dangerous propensities ofhis patient, precautions that were informed by the professional mental health standards. Petersen, 100 Wn.2d at 428. 6In reaching omdecisioninPetersen, we beganby noting that avictimmaypmsue a cause ofaction against a doctor when the doctor fails to warn his patient of a prescribed drug's side effects. See Kaiser v. Suburban Transp. Sys., 65 Wn.2d 461, 398 P.2d 14,401 P.2d 350 (1965). The patient inKaiser was a bus driver, and as a result ofthe doctor's failure to warnthepatient of the prescribed drug's side effects, the patient fell asleep while operating a bus, wrecked the bus, and injmed the plaintiff, who was a passenger onthebus at the time ofthe accident. !d. at 462-63. There, the court explained that the doctor should have reasonably foreseen the harm that would result from the failme to warn the patient ofthe drug's side effects. !d. at 464. 

### 15Vollcv. DeMeerleer, No. 91387-1 opportunity to address whether a mental health professional and a patient have the requisiterelationship to satisfy 

### §315 oftheRestatement. To inform ourdecision, we relied primarily on Tarasojf, the seminal case expressing the duty owed by mental health professionals to the victims of their patients.7 Id. at 427. In Tarasojf, the California Supreme Court, citingtheRestatement § 315 duty, heldthe mental health professional/outpatient relationship was sufficient to impose an affirmative duty on the therapist to protectthe foreseeable victims oftheirpatients. Id. (citing Tarasojf, 17 Cal. 3dat435). The Tarasoff court"ruledthatwhenapsychotherapistdetermines, or, pursuant to the standards of the profession, should determine, that a patient presents a serious danger ofviolence to another the therapist incurs an obligationto

use reasonable care to protect the intended victim against such danger." Id. (citing Tarasojf, 17 Cal. 3d at 435). As interpretedbythePetersen court, "discharge ofthe duty may require the therapist to take whatever steps are necessary under the circumstances, including possibly warning the intended victim or notifying law enforcement officials." Id. 8

7Despite characterizations to the contrary, the therapists in Tarasoffdid not know the identity ofthevictimpriorto the attack. Rather, as we explainedinPetersen, "thepatientinformed his therapistthathe intendedto kill ayoung woman. Althoughthe patientdidnot specificallyname [the victim] as his intended victim, plaintiffs alleged, and the trial court agreed, that the defendant therapists couldhave readily identifiedthe endangeredperson as [the victim]." I00 Wn.2d at 427. 8In our evaluation of Tarasoff, we acknowledged that subsequent California decisions limited Tarasoffs holding by requiring that victims be "readily identifiable" before liability is imposed onthe treatingpsychiatrists. Petersen, 100 Wn.2d at 427-28 (citing Thompson v. County of

Alameda, 27 Cal. 3d741,752-54,614P.2d728, 167 Cal. Rptr. 70 (1980);Mavroudis v. Superior Court, 102 Cal. App. 3d 594, 600-01, 162 Cal. Rptr. 724 (1980)). We also considered a second 16Vollcv. DeMeerleer, 

### No. 91387-1 In finding that the mental health professional/outpatient relationship met the requirements of §315, the California Supreme Court relied solely 

### on an expansive reading of § § 315 et seq., under which affirmative duties to act are imposed whenever the nature of the relationship warrants social recognition as a special relation, notbased onanyhypothetical ability to control the patient. See id.; see also Estates of Morgan v. FairfieldFamily Counseling Ctr., 

### 77 Ohio St. 3d 284, 294, 673 N.E.2d 1311 (1997). The Tarasoff

### court explained, "[C]ourts have increased the number ofinstances in which affirmative duties are imposed not by directrejection ofthe common law rule [ofnonliability for nonfeasance], butby expanding the list ofspecial relationships which willjustify departure from that rule." 17 Cal. 3d at 435 n.5. Considering the facts before us in Petersen, 

### we held that the doctor in that

case had a duty to take reasonable precautions to protect anyone 

### who might foreseeably be endangered by his patient's "drug-related mental problems." 100 Wn.2d at 428. We reasoned that the doctor knew his patient was potentially dangerous, was possibly unpredictable, and evidenced poor compliance with his

line ofcases that were contraryto Califomia'slimiting approachwhere othercourts optedto retain the original more expansive Tarasoffstandard. Id. at 428. The second line ofcases imposed a duty on therapists when they should "reasonably foresee that the risk engendered by the patient's condition would endanger others," without the "readily identifiable" requirement. !d. (citing Semlerv. Psychiatriclnst., 538 F.2d 121, 124 (4th Cir. 1976);Lipari, 497 F. Supp. at 194; Williams v. UnitedStates, 450 F. Supp. 1040, 1046 (D.S.D. 1978)). AlthoughCaliforniahad chosento limit Tarasojfsholding, we expressly electedto retainthe more expansivedutyembracedbythe second line ofcases. !d. at 428-29. 

### 17Volkv. DeMeerleer, No. 91387-1 medication regimen during their prior interactions. Id. Because the doctor failed to take any other actions, including but not limited to seeking additional confinement,

a question ofmaterial fact existed as to whetherthe doctorwas negligent. Id. at 435- 36. Ashby and the Clinic askus to interpretPetersen as a § 319 take charge case, and disavow the duty between a mental health professional and his outpatient's victims based on the supposed lack ofcontrol a mental health professional exerts
over his outpatient. The amount of control Ashby and the Clinic would require is erroneously derived from our interpretations ofthe related, but distinct, take charge relationship of§ 319,ratherthanthe specialrelationship of§ 315, onwhichwerelied in Petersen. 9 Restatement§ 319 defines the "take[] charge" relationship as: "One who takes charge ofa third person whom he !mows or should lmow to be likely to

cause bodily harm to others ifnot controlled is under a duty to exercise reasonable

care to control the third person to preventhim from doing such harm." One need only examine ourprior decisions considering the § 319take charge relationship to see thatPetersen was not atake charge case. As we have interpreted § 319, a take charge duty to act for the benefit ofreasonably foreseeable victims

9The Washington Practice series also recognizes the distinctionbetweenthe "talce charge" relationship and the special relationship envisioned by this court in Petersen. See 16 DAVID K. DEWOLF&KELLERW. ALLEN, WASHINGTONPRACTICE: TORTLAWAND PRACTICE§ 2:12 (4thed. 2013). 18

### Volin. DeMeerleer, 

### No. 91387-1 exists in certain relationships, including the parole officer/parolee relationship, the probation officer/probationer relationship, and the corrections officer/community custody offenderrelationship. See Taggart, 

### 118 Wn.2d 195;Hertog, 

### 138 Wn.2d265; Joyce v. Dep't ofCorr., 

### 155 Wn.2d 306, 119 P.3d 825 (2005). In Taggart, 

### examining the parole officer/parolee relationship, "take charge"

was characterized by parole officers' ability to monitor parolees' compliance with release conditions, regulate parolees' movements, impose special conditions on parolees, such as refraining from alcohol ordrug use ornotpossessing firearms, and the parole officers' knowledge of the parolees' criminal histories and ability to monitorparolees' progress. 118 Wn.2d at 219-20. When aparolee's criminal history and progress indicate that he or she is likely to cause bodily harm to others ifnot controlled, the parole officer must exercise reasonable care to control the parolee. Id. 

### at 220. There, we held that the duty imposed by § 

### 319 is "similar," but we did not state that it was the same duty expressed inPetersen. Id. 

### at 219. In Hertog, 

### considering the relationship between municipal probation counselors and probationers, we found a take charge relationship existed due to many of the same features found in the parole officer/parolee relationship, but emphasized the ability ofcounselors to monitor probationers' compliance as well

as their duty to report violations to the court. 138 Wn.2d at 279.

19Volin. DeMeerleer, No. 91387-1 Finally, in Joyce, we evaluated the corrections officer/offender relationship when the offender remains under community supervision. 155 Wn.2d at 309. We found that state corrections officers "take charge" of offenders on community custody based again on many ofthe same features expressed in Taggart. I

### d. at 316- 17. However, we specifically recognized that in all take charge relationships, including the corrections officer/offender relationship, the government assumed a duty ofsupervision overthe thirdpartyto ensure compliancewith certain conditions and wasthereforerequiredto exercisereasonable care in monitoring compliance and dangerousness.Jd. at 316; see also Bishop v. Miche, 137 Wn.2d 518, 973 P.2d 465 (1999) (recognizing take charge duty ofcounty probation officers). Taggart, Hertog, andJoyce all relied onPetersen as expressing a general duty under § 315 because Petersen was the first case to recognize the existence of a special relationship pursuantto theRestatement. Still, our express adoptionof§ 319 in all ofthose cases when we had refrained from doing so in Petersen presupposes that the relationships at issue in those cases were distinct from the 

### § 315 special relationship duty. This distinction was presumably due to the assumption ofa duty ofsupervision and a greater degree ofcontrol available to the supervising party in the§ 319 take charge cases. 10

10In Taggart, we explicitly rejectedthe amount ofcontrol that Ashby and the Clinic ask us to impose and unambiguously stated that even pursuant to a § 319 take charge relationship, the relationship need not be custodial in nature or even continuous in order for a duty to exist. 118 

### 20Volkv. DeMeerleer, 

### No. 91387-1 Distinctly, under Petersen, 

### once a special relationship is formed (one that is definite, established, and continuing), a duty exists without regard for the "control" principle guidingthe§ 319take charge cases. Therelationship inPetersen 

### originated from an involuntary commitment, but there was nothing in that case that indicated the doctor was to have a continued relationship with his patient, or that he was to monitor his patient's condition like the relationships described in Taggart, Hertog, 

### and Joyce. 

### Still, the nature ofthe relationship in Petersen 

### gave the doctor unique insight into the potential dangerousness of his patient as well as the identity of potential victims. While other individuals may have been aware of his patient's actions, the doctor's relationship to his patient, combined with his professional knowledge, allowed him to stand in the distinctposition ofbeing able to mitigate or prevent the dangerousness of his patient and the ability to "take whatever steps [were] necessary under the circumstances, including possibly warning the intended victim or notifying law enforcement officials." Petersen, 

### 100 Wn.2d at 427. Basedonthe starkdifferencesbetweentherelationship inPetersen 

### givingrise to a duty solely under §315 and the §319take chargerelationships described above,

Wn.2d at 223. In doing so, we were informed by the§ 315 Petersen duty and, when defining the "take charge" duty, took the opportunity to clarify that our holding in Petersen was reliant on neither the public duty of the State nor the fact that the patient had at one time been civilly committed. Id. In fact, we clearly stated that whether the patient is an inpatient or an outpatient is immaterial. Id. Even under ourprior interpretations of§ 319, aprovisionthatwe have interpreted as requiring a greater amount ofrestraint over the third party, there is no prerequisite ofactual control. 

### 21Volin. DeMeerleer, No. 91387-1

we reject Ashby's and the Clinic's invitation to interpret the Petersen duty and the take charge duty as one in the same. 11 Forthis reason, the amount ofcontrol or the nature ofcontrol Ashbyhad overDeMeerleeris notdeterminative ofwhetherAshby

was under a duty to act for the benefit ofDeMeerleer's victims. 2. The 

### § 315 Petersen duty applies in the outpatientsetting The duty owed by Ashby to DeMeerleer's victims was not based on any supposed controlAshby imposed overDeMeerleer,butwas instead, like ourholding in Petersen, based onthe nature ofthe relationship betweenAshby andDeMeerleer.

11Wehave neverreadPetersen, implicitlyorexpressly, asrequiringthatarelationshipmeet therequirements ofboth§§ 315 and 319 before aduty ofcare is imposed. Sections 316-319 define the "types ofduties"that will meetthe requirements of§ 315, butwe have neverheldthatthey are the only relationships that will trigger the § 315 duty to a putative victim. The dissent's argument otherwise is unavailing. Dissentat 3-4. Ourholdings inboth Taggart andBinschus werebasednot on the kind ofspecial relationships that exist between psychotherapist and patient, but on those between fonner inmates and the state. Binschus v. Dep't of Carr., 186 Wn.2d 573, 576,582, 380 P.3d 468 (2016); Taggart, 118 Wn.2d at 200. It standsto reasoninthose cases we would limitour analysis to whether an actual take charge relationship exists, as this, rather than treatment, is the basis ofthe relationship. But we should not interpret those cases as standing for the proposition that atake chargerelationship mustexisthere. This reasoning disregards ourholdinginPetersenthat a special relation may exist outside of§ 319-particularlyinthe contextofa relationship with a mental health professional. Whilethe relationships defined in § § 316-319 are sufficientto create a "special relation" duty, they are not necessary. Indeed, perhaps recognizing that the type of control required by § 319 did not existunder the facts ofthat case, when articulating thePetersen duty we relied solely onthe general "specialrelation" definition in § 315(a) without anyreference to § 319. Tarasojf, onwhich we relied inPetersen, also did notindicate any reliance on § 319, but instead based its duty solely on§ 315. Petersen, 100 Wn.2d at 426-27. As we have interpreted§§ 315 and 319, § 31 5 states a general "specialrelation" standard that may be present in any number of factual scenarios fitting that definition, while § 319 embodies the so-called "take charge" relationship. Because Petersen's duty is premised solely on§ 315, not§ 319 as asserted in the briefing, it would seem to imply that inasmuch as we have interpreted § § 315 and 319, they state potentially overlappingbutnevertheless distinct standards. Hadthe members ofthePetersen court soughtto basetheir duty on§ 319, presumably they wouldhave expressly statedtheir intentto do so. 22

### Volk v. DeMeerleer, No. 91387-1 Considering the competing policy implications ofrecognizing a duty in the mental health professional outpatient setting, our reasoning in 

### Petersen, and our later interpretations of 

### Petersen, we hold that after a special relationship is formed between amentalhealthprofessionalandhis orheroutpatient satisfying

### Restatement § 315, the mental health professional is under a duty of reasonable care to act consistent with the standards ofthe mental health profession, in order to protect the foreseeable victims ofhis or her patient. Because ofthe general common law rule ofnonliability to third parties, to decide whetherthe law imposes aduty ofcare and to "determinethe duty's measure and scope," we mustweigh '"considerations oflogic, common sense,justice,policy, and precedent."'

### Affil. FMIns. Co. v. LTK Consulting Servs., Inc., 170 Wn.2d 442, 449, 243 P.3d 521 (2010) (plurality opinion) (internal quotation marks omitted) 

### (quotingSnyderv. Med. Serv. Corp. ofE. Wash., 145 Wn.2d233, 243,35 P.3d 1158 (2001)). As we have explained, "'The concept ofduty is a reflection of all those considerations of public policy which lead the law to conclude that a plaintiffs interests are entitledto legal protection againstthe defendant's conduct."'

### Id. at450. (internal quotation marks omitted) (quoting 

### Taylor v. 

### Stevens County, 111 Wn.2d 159, 168, 759 P.2d 447 (1988)); 

### see also W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 53, at 357-58 (5th ed. 1984) ('"[D]uty' is not sacrosanct in itself, but is only an expressionofthe sumtotal ofthose considerations 23Volk v. DeMeerleer, No. 91387-1 ofpolicywhichleadthe lawto saythattheplaintiffis entitledtoprotection."). Using

ourjudgment, "webalancetheinterestsat stake."Affil. FM, 170 Wn.2d at450 (citing Hunsley 

### v. Giard, 87 Wn.2d 424,435, 553 P.2d 1096 (1976)). When considering**whethe~** to impose a duty onmental healthprofessionals in the outpatient setting, other courts have summarizedthe competing policy concerns
as follows: (1) [T]he psychotherapist's ability to control the outpatient; (2) the public's interest in safety from violent assault; (3) the difficulty inherent in attempting to forecast whether a patient represents a substantial risk ofphysical harm to others; (4) the goal ofplacing the mental patient in the leastrestrictive environment and safeguardingthe patient's right to be free from unnecessary confinement; and (5) the social importance of maintaining the confidential nature of psychotherapeutic communications. Estates of Morgan, 77 Ohio St. 3d at 297. The briefing recognizes, and we agree, thatthese samepolicyconcerns are atissue inthepresentcase. Wetherefore address each concerninturnto determine whethertheRestatement § 315 dutyrecognized in Petersen shouldbe extendedto the outpatient setting. a) Psychotherapists' ability to control outpatients To be certain, in order for a special relation to exist under 

### § 315 and impose the corresponding duty, there must be some ability to "control" the third person's conduct, orelsethe duty contemplatedbyus inPetersen wouldessentiallybe one of strict liability. See id. at 298 ('"[C]ontrol' is 'used in a very real sense."' (quoting Fowler V. Harper & Posey M. Kime, The Duty To Control the Conduct of Another, 24

### Volk v. DeMeerleer, No. 91387-1 43 YALE L.J. 886, 891 (1934))). Still, courts that have failed to recognize a duty in the outpatient settingtake an overly narrow view ofthe level ofcontrol necessary to impose the duty by believingthat actual confinement or the deprivation ofliberty is necessary. 

### Id. 298-99. As one court explained, "In viewing the issue in this way, these courts fail to recognize that the duty to control the conduct ofathirdperson is commensurate with such abilityto control as the defendant actuallyhas atthetime." 

### Id. at 299 (citing RESTATEMENT§ 314 cmt. a,§ 316 cmts. a, b, § 317 cmt. c, § 318 cmt. a; 

### Lundgren v. Fultz, 354N.W.2d25,27-28 (Minn. 1984); 

### Mcintosh v. Milano, 168 N.J. Super. 466, 483 n.11, 403 A.2d 500 (1979)). Thoughthe amount ofcontrolrequiredtomeet §319 is notnecessaryto fulfill the § 315 special relationship, the different levels of control evidenced in that provision are telling of the drafters' intent. Considering the language of the 

### Restatement, it seems that its drafters contemplated that "diverse levels ofcontrol" would "give rise to corresponding degrees ofresponsibility." 

### Id. The illustrations of § 319 discuss scenarios in which potentially dangerous individuals are confined in private sanitariums and negligently released. 

### See RESTATEMENT 

### § 319 cmt. a, illus. 1 & 2. However, the plain language of § 319 is distinctively more broad, evidencing the diverse levels of control present in the 

### Restatement. See RESTATEMENT§ 319 ("One who takes charge ofa third person whom he knows or should know to be likelyto cause bodily harm to others ifnot controlled is under a 25Vollcv. DeMeerleer, No. 91387-1 dutyto exercisereasonable careto controlthethirdpersonto preventhimfrom doing such harm."). Similarly, 

### § 320 imposes a duty to protect someone under custodial care, but the comments to thatprovision indicate "custody" is "more suggestive of restrictions on liberty." See RESTATEMENT§ 320;Estates of Morgan, 77 Ohio St. 3d at 299. The court in Mcintosh, a decision we relied on in Petersen, explained that "the illustrations appended to [§ 319], which are drawn in the context ofa private hospital or sanitarium for the insane, are obviously not by way oflimitation." 168 N.J. Super. at 483 n.ll. We agree. Evenbearing in mind the lesser amount ofcontrol available to mental health professionals in the outpatient setting, sufficient control nevertheless exists to recognize the duty. There are a number of preventative measures mental health professionals can undertake in the outpatient setting, even without actual custodial control, which we reiterate is not required by § 319, in orderto mitigate orprevent their patients' foreseeable violent. actions. 12 Given this reasoning, we find that absolute control is unnecessary, and the actions available to mental health professionals, even in the outpatient setting, weigh in favor ofimposing a duty.

12As one court reasoned, steps in the outpatient setting can include closer monitoring of compliance with medications and ofthe patient's mental state, strong family involvement, and informingthepatientthathefaces involuntaryhospitalizationunlessheremains compliant.Estates of Morgan, 77 Ohio St. 3d at 300, 26Volk v. DeMeerleer, 

### No. 91387-1 b) Public's interest in safety from violent assaults As evidenced by this court's decision inPetersen, 

### and by the Tarasoff

### court, society has a strong interest in protecting itselffrom mentally ill patients who pose
a substantial risk ofharm. See Petersen, 

### 100 Wn.2d at 428-29; Tarasoff, 

### 17 Cal. 3d at 440, 442; see also 

### RCW 71.05.150 (defining involuntary commitmentprocedures for mentally disabled persons presenting a likelihood of serious harm). Both statutorily andthrough common sense, society relies on mental health professionals to identify and control such risks. See 

### RCW 71.05.150. The mental health communitythereforehas abroadresponsibilityto protect societyagainstthe dangers associated with mental illness. SeeEstates of Morgan, 

### 77 Ohio St. 3d at 301;Lipari, 

### 497 F. Supp. at 190; Mcintosh, 

### 168 N.J. Super. at 489-90. This responsibility is analogous to the duty imposed on health care providers to warn others of their patients' contagious or infectious diseases. See 

### WAC 246-100-021, -036; RCW 43 .20.050(2)([) (granting authorityto StateBoard ofHealthto adoptrules to prevent and control infectious diseases). In Mcintosh, 

### the court explained that a patient's dangerouspropensities "may affect [others] inmuchthe same sense as adiseasemay be communicable. The obligation imposed bythis court, therefore, is similar to that already borne by the medical profession in another context." 168 N.J. Super. at 490.

27

### Volkv. DeMeerleer, 

### No. 91387-1 Given this reasoning, as well as Washington's acknowledgment of an analogous duty in the involuntary commitment setting, this factor also weighs in favor ofimposing a duty on mental healthprofessionals inthe outpatient setting. c) The difficulty in assessing mental health dangerousness In Petersen, 

### despite the difficulty in assessing whether amental healthpatient posed a serious threat to himselfor others, we held there that such difficulty did not justify a blanket denial ofrecovery. 100 Wn.2d at 428; see also Estates of Morgan, 77 

### Ohio St. 3d at 301. Although accurately assessing dangerousness is unquestionably difficult, "[t]he concept of due care adequately accounts for the difficulty ofrendering a definitive diagnosis ofa patient's propensity for violence." Estates of Morgan, 77 

### Ohio St. 3d 301. It 

### is unrealistic to expect perfection in all mental health diagnoses, but requiring that mental health professionals use the standards ofthe mental health profession to arrive at the informed 

### assessment of their patients' dangerousness is not an unworkable requirement. See Lipari, 

### 497 F. Supp. at 192; Mcintosh, 

### 168 N.J. Super. at 482; Tarasoff, 

### 17 Cal. 3d at 438; Estates of Morgan, 77 

### Ohio St. 3d at 301-02. "Mental health professionals
... now accept these duties as established, appropriate features of clinical practice." Douglas Mossman, The Imperfection ofProtection through Detection and Intervention: Lessons from Three Decades of Research on the PsychiatricAssessmentofViolence Risk, 

### 30 

### J. LEGALMED. 109, 121 (2009). 28Volin. DeMeerleer, 

### No. 91387-1 Additionally, ifpredicting a patient's dangerousness without at least some amount of accuracy was not possible, mental health professionals would not be entrusted to do so for civil commitment or sexually violent predator proceedings when such determinations canresultin an indefinite deprivation ofliberty. See

### RCW 71.05.150(1)(a)(i) (requiring, as one basis for involuntary commitment, that the mental health professional determine thatthe patient present a likelihood ofserious harm); RCW 71.09.050, .070, .090 (relying on expert mental health evaluations to determine whether individual likelyto engage in predatory acts ofsexual violence if not confined in a secure facility). This factor weighs in favor ofimposing a duty as well. d) The goal of placing the mental patient in the least restrictive environment and safeguarding the patient's right to be free from unnecessary confinement A primary goal ofthemental health profession is to place patients inthe least restrictive environment necessary. In re Det. of J.S., 

### 124 Wn.2d 689, 701, 880 P.2d 976 (1994) ("Certainly RCW 71.05 [the mental illness statutory scheme] expresses
a public policy goal that treatment be offered in the least restrictive setting reasonably available."); Estates of Morgan, 

### 77 Ohio St. 3d at 302 (citingPerreira v. State, 

### 768 P.2d 1198, 1219 (Colo. 1989)). To be certain, "[m]ental hospitals are not dumping grounds for all persons whose behavior mightprove to be inconvenient or offensive to society." Estates of Morgan, 

### 77 Ohio St. 3d at 302 (citing 0 'Connor v. 

### 29Volk v. DeMeerleer, No. 91387-1 Donaldson, 422 U.S. 563, 575, 95 S. Ct. 2486, 45 L. Ed. 2d 396 (1975)). Individual liberty interests are also constitutionally protected by both the state and federal constitutions. See WASH. CONST. art. I,§ 3; U.S. CONST. amend. XIV. However, the fear that imposing this duty on mental health professionals will increase improper civil commitments appears to be unfounded. Estates of Morgan, 77 Ohio St. 3d at 302 (citingDanielJ. Givelber, eta!., Tarasojf, Myth andReality:AnEmpiricalStudy of PrivateLaw inAction, 1984 WIS. L. REV. 443, 486 ("Tarasoffhas notdiscouraged therapists from treating dangerous patients, nor has it led to an increased use of involuntary commitmentofpatients perceived as dangerous.")). The standardunderconsideration does notimposeliabilitymerelybecausethe mental health professional chose to place his or her patient in a less restrictive environment,providedthatdecisionwas informedbythe standards oftheprofession and made with due care. See Lipari, 497 F. Supp. at 192-93 ("This argument misinterprets the nature ofthe duty imposed upon the therapist. The recognition of this duty doesnotmakethepsychotherapistliablefor anyharmcausedbyhispatient, butrather makes him liable only when his negligent treatment ofthe patient caused the injury in question
.... Thus
... a psychotherapist is not subject to liability for placing his patient in a less restrictive environment, so long as he uses due care in assessing the risks ofsuch aplacement. This duty is no greaterthanthe duty already owingto thepatient."). Because ofthe lack ofevidence indicatingthat Tarasoffhas
30

### Volin. DeMeerleer, No. 91387-1 increased the amount of improper civil commitments or decreased mental health professionals' acceptance ofpotentially dangerous clientele, this factor weighs in favor ofimposing a duty. e) The social importance ofmaintaining the confidential nature of psychotherapeutic communications Like Ashby, the doctor in 

### Mcintosh argued that disclosure pursuant to a 

### Tarasoff-like duty would have "socially undesirable ramifications." 

### Mcintosh, 168 N.J. Super. at 490. Washington, like NewJersey at the time 

### Mcintosh was decided, has codifiedthe physician-patientprivilege. 

### !d. The

### Mcintosh courtnoted, however, thatthepsychologist-patientprivilege must in some cases givewayto '"supervening interest ofsociety,"' in the same way the attorney-client privilege may not be used to "protect or conceal" the commission ofa crime. 

### !d. (quoting 

### Hague v. Williams, 37 N.J. 328, 336, 181 A.2d 345 (1962)). The 

### Mcintosh court also considered the American Medical Association's 

### Principles of Medical Ethics (1957), https://www.ama-assn.org/sites/default/files/media-browser/public/ethics/1957

_ principles_O.pdf[https://penna.cc/3JYE-CLFH], whichwas adoptedinlargepartby the psychiatricprofession. 168 N.J. Super. at 491. The psychiatricprofession's ethical considerations required thatpsychiatrists be circumspectinprotectingpatientdisclosures andthatrelease ofinformationoccur only when authorized by the patient or required by law. 

### !d.; see also RCW 70.02.230(6)(a) (providing a right ofaction and minimum recovery amount for the 31

### Volkv. DeMeerleer, No. 91387-1 improper disclosure of mental health records by a mental health provider). Nevertheless, one exception to the disclosure limitations, the 

### Mcintosh court explained, was "toprotectthepatient orthe community from imminentdanger." 168 N.J. Super. at 491 (citing 

### The Principles ofMedical Ethics with Annotations EspeciallyApplicable to Psychiatry, 130 AM. J. PSYCHIATRY 1058, 1063 (1973)),13 Based on these considerations, the 

### Mcintosh court concluded, "[C]onsiderations of confidentiality have no over-riding influence here." Id. at 493. Neither the concern expressed by the 

### Petersen court regarding disclosure nor themedical standards have changed sincewe decided

### Petersen in 1986. We recently explainedthat despitetheprotectionaffordedmentalhealthrecords by chapter70.02 RCW and the Health Insurance Portability and Accountability Act of 1996 Pub. L. No. 104-191, 110 Stat. 1936, the protection is conditional and will yield to greater societal interests. 

### State v. Sanchez, 177 Wn.2d 835, 849, 306 P.3d 935 (2013); 

### see RCW 70.02.230(2)(h)(i) (allowing for the disclosure of otherwise confidential information by mental health professionals to persons whose "health and safety has been threatened").

130fnote, the American Psychiatric Association (APA) continues to utilize the standards quoted inMcintosh. Section 4 states, "A physician shall respectthe rights ofpatients, colleagues, and other health professionals, and shall safeguard patient confidences and privacy within the constraints of the law." APA, THE PRINCIPLES OF MEDICAL ETHICS: WITH ANNOTATIONS ESPECIALLY APPLICABLE TO PSYCHIATRY 2 (2013 ed.), http://www.psychiatry.org/ psychiatrists/practice/ethics. Still, the comments to section 4 permit disclosure "[w]hen, in the clinicaljudgmentofthe treatingpsychiatrist, therisk ofdanger is deemed to be significant." ld. at 7 (cmt. 8). 32Vollcv. DeMeerleer, No. 91387-1 This conditionality is premised on overriding societal concerns, such as preventing harm to anyone who might foreseeably be endangered by a patient's dangerous propensities. Nationally, required disclosure has '"had a minimal or positive effect on the psychotherapeutic relationship.' Because 'almost halfofthe targets ofpatients' threats were family members, spouses, boyfriends, or girlfriends

... the Tarasofftype ofsituation,' ratherthan being detrimental for treatment, 'may hold promise for family-oriented therapeutic interventions."' Mossman, supra, at 119 (alterationin original) (quotingReneeL. Binder& DaleE. McNeil,Application of the Tarasoff RulingandIts Effecton the Victim andthe TherapeuticRelationship, 47 PSYCHIATRIC SERVS. 1212, 1212 (1996); Dale E. McNeil et al., Management of Threats of Violence Under California's Duty-To-Protect Statute, 

### 155 AM. J. PSYCHIATRY 1097, 1100 (1998)). Given society's strong interest in preventing violent attacks by mentally ill patients, as well as the recognition that the mental health profession has long accepted a duty ofdisclosure when a potential victim's safety is injeopardy, this factor weighs in favor ofimposing a duty. t) Precedential support for expanding Petersen duty to outpatient setting In addition to the above policy considerations, our subsequent interpretations ofPetersen, as well as ourreasoning inPetersen, are relevantto the imposition ofa

33Vollrv. DeMeerleer, No. 91387-1 duty and warrant extension ofthe§ 315 duty to the outpatient setting. SeeAffil. FM, 170 Wn.2d at 449. First, as we have subsequently interpreted Petersen, custodial control is not a prerequisite to the imposition ofthe § 315 Petersen duty, and the duty should apply equally to the outpatient setting provided a special relation exists. Ashby is correct that the doctor/patient relationship in Petersen arose in the context ofinvoluntary civil commitment. However, the language in Petersen used to describe the duty psychologists owe to the victims oftheir patients' criminal or tortious conduct was not limited to civilly committed individuals. Instead, Petersen, and subsequent interpretations of § 315, implies that regardless ofthe setting in which the special relationship is formed, as soon as it exists, the mental health professional may be liable to thereasonably foreseeable victims ofhis orher patientbased solely onthat relationship ratherthan any hypothetical ability to confine or controlthe patient. See Hertog, 138Wn.2d at 280 ("Thepsychiatrist inPetersen hadno authorityto confine the patient without seeking a court order. Similar to the circumstances in Petersen, the factthataprobationcounselorcannot act onhis orherownto arrest aprobationer

or to revoke probation is not dispositive on the issue of duty."). We also spoke directly to this point in Taggart, where we clarifiedthatthe § 315 Petersen duty did not require control and was, therefore, notlimitedto the inpatient setting. There, we stated: 34Volkv. DeMeerleer, No. 91387-1 The duty we announced inPetersen is notlimitedto takingprecautions to protect against mental patients' dangerous propensities only when those patients are being released from the hospital
. . . . The duty requires that whenever a psychiatrist determines, or according to the standards of the profession should have determined, that a patient presents foreseeable dangers to others, the psychiatrist must take reasonable precautions to protect against harm. Whether thepatient is a hospitalpatientoran outpatient is not important. Thus in Tarasoff v. Regents ofUniv. ofCal., 17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14 (1976), which we followed in Petersen, negligent release from the hospital was not an issue; the patient who murdered the plaintiffs' daughter was not a hospital patient. Similarly, in Lipari v. Sears, Roebuck & Co., 497 F. Supp. 185 (D. Neb. 1980), which we also followed in Petersen, a patient at a psychiatric clinic fired a shotgun into a crowded nightclub. The patient was a day-care patient

- so, again, releasewas notan issue- yetthe court found thatthe defendant therapist had a duty to anyone foreseeably endangered by the patient's negligent care. 497 F. Supp. at 194. 118 Wn.2d at 223 (emphasis added). The interpretations unambiguously permitthe extension ofthe§ 315 Petersen duty to the outpatient setting. Second, the Petersen court's reliance on Tarasoffauthorizes an extension of the duty to the outpatient setting, especially in light ofthe fact that Tarasoff itself

arose in a voluntary outpatient/mental healthprofessionalrelationship. See Tarasoff, 17 Cal. 3d at 432. Similarly, the three cases we relied on in Petersen for the propositionthat a special relationship may impose a duty to victims, involved either outpatienttreatment or release from voluntary confinementresulting in the amount ofcontrol akin to an outpatient/mental health professional relationship. See Lipari, 497 F. Supp. at 185;Mcintosh, 168 N.J. Super. at493; Bradley Ctr., Inc. v. Wessner, 161 Ga. App. 576, 577, 287 S.E.2d 716 (1982). Though our decision in Petersen 35

### Volk v. DeMeerleer, No. 91387-1 dealt with a special relationship that originated from an involuntary commitment,

we never explicitly or implicitly attempted to confine the duty to only the facts of that case. g) Balancing outcome Without question, mental healthprofessionals face an incredibly difficulttask in ascertaining whether apatientwill actviolently. Nevertheless, the § 315 

### Petersen duty does not require that the mental health professional make the correct determination ofdangerousness every time the professional forms a mental health professional/outpatient relationship. To impose such a burden not only would be untenable given medical technology and the unpredictability ofthe human psyche but would expose psychiatrists to insurmountable costs in defending lawsuits for each incorrect conclusion. Whatthe current standard wouldrequire, however, is the

same duty imposed by 

### Tarasoff and adopted by us in 

### Petersen-to act with reasonable care, informed by the standards and ethical considerations ofthe mental healthprofession, when identifying and mitigating the dangerousness ofpsychiatric patients. Once such a patient is identified, the duty imposed by reasonable care depends on the circumstances: reasonable care may require providing appropriate treatment, warning others ofthe risks posedbythe patient, seeking the patient's agreement to a voluntary commitment, making efforts to commit the patient involuntarily, or taking other steps to ameliorate the riskposedbythe patient. In some cases, reasonable care may require a warning to someone otherthanthe potential victim, such 36Vollr:v. DeMeerleer, No. 91387-1

as parents, law-enforcement officials, or other appropriate government officials. RESTATEMENT (THIRD) OF TORTS: LIABILITY FORPHYSICAL AND EMOTIONAL HARM 

### §41 cmt. g (AM. LAW lNST. 2012). Accordingly, we hold that once a mental health professional and his or her outpatient form a special relationship that satisfies the requirements ofRestatement § 315, the mental health professional is under a duty of reasonable care to act consistent with the standards of the mental health profession and to protect the foreseeable victims of his or her patient. Failing to recognize the duty owed by mental health professionals to the foreseeable victims oftheir outpatients would foreclose a legitimate cause ofaction and would inform the victims thattheir rights

are not worthy oflegal protection against the dangerous conduct ofmental health outpatients. Itis our beliefthat this standard fairly balances the needs ofprotecting the public, allowing recovery for victims of psychiatric patients' crimes, and providing the necessary protection for mental health professionals to perform their jobs. Granting absolute immunity to health care professionals in the outpatient setting would "disrupt that delicate balance." Taggart, 118 Wn.2d at 232 (Utter, J., concurring). 3. Application to thepresent case AshbyandDeMeerleerhad apsychiatrist/outpatientrelationship thatspanned nearly nine years. Ashby also conceded that he and DeMeerleer shared a special 37Vollcv. DeMeerleer, No. 91387-1 relationship for thepurposes ofPetersen. The existence ofthis relationshiptriggered the duty expressed in 

### § 315 ofthe Restatement and defined by the Petersen court, whereby Ashby had a duty to take reasonable precautions to protect anyone who might foreseeably be endangeredby DeMeerleer's dangerous propensities. At several different meetings, DeMeerleer informed Ashby of suicidal and homicidal thoughts. DeMeerleernever specifically named Schiering orher children, but this was not required by Petersen. 14 Ashby knew ofDeMeerleer's history of suicidal and homicidal thoughts, knew that DeMeerleer had attempted to act out suicide and retribution at different times, recognized that DeMeerleer was unstable at their lastmeeting, andknewthatDeMeerleerhad a history ofnoncompliance with his antipsychotic medications. Knoll, Volle's expert forensic psychology witness, opined that during DeMeerleer's divorce his negative fantasies were directed at his ex-wife and her lover, and that inquiry into DeMeerleer's state ofmindprior to the attack may have revealed similarthoughts directed at Schiering and her children. Knoll's affidavit states that Ashby's failure to schedule additional meetings, follow up with DeMeerleer, and monitor DeMeerleer's condition was a breach of professional standards and was a causal and substantial factor oftheharmsthatbefell Schiering and her sons. The only evidence proffered by Ashby and the Clinic to

14As explained above, supra note 7, we rejected a limitation on the Petersen duty that would require that victims be readily identifiable and instead opted to impose a duty to any foreseeable victims. 38Volkv. DeMeerleer, No. 91387-1 rebut this contention was several affidavits from DeMeerleer's family and friends whereinthey statedthatDeMeerleer did not outwardly evince any indication thathe would act violently. None ofthe affidavits supplied by Ashby and the Clinic speak to the professional psychiatric standards with which Ashby was to comply. Basedonthe factual underpinnings ofthis case, as well as Ashby's concession that a special relationship existed between him and DeMeerleer, the § 315 special relationship requirements were met. "Once the theoretical duty exists, the question

·remains whether the injury was reasonably foreseeable." Joyce, 155 Wn.2d at 315

(citing Taggart, 118 Wn.2d at 226; RESTATEMENT§ 319). Whether DeMeerleer's actions were foreseeable, however, is a question of fact that should have been resolved by ajury. Seeberger v. Burlington N. R.R. Co., 138 Wn.2d 815, 823,982 P.2d 1149 (1999)(citingMcLeodv. GrantCountySch. Dist. No. 128,42Wn.2d 316, 323, 255 P.2d 360 (1953)). Summaryjudgmentwas therefore inappropriatebecause at aminimum, viewingthe facts in thelightmostfavorableto Volk, Knoll's affidavit created a genuine issue ofmaterial fact as to whether, based on the standards ofthe mental health profession, the harms experienced by Schiering and her family were foreseeable.

39

### Volkv. DeMeerleer, No. 91387-1 B. The Court ofAppeals erred in stating that there are two levels ofspeculative expert testimony permitted at summaryjudgment and trial and by using this reasoning in its decision Ashby contends that the expert testimony ofKnoll should have been stricken because it was overly speculative in nature. Ashby primarily takes issue with the Court ofAppeals' decision where it held Knoll's testimony was permissible based

on a differing level of permissible speculation at the summary judgment stage. Specifically, the Court ofAppeals reasoned: [T]he law likely recognizes two levels ofspeculation: one for purposes of summaryjudgment, and one for purposes offinding facts after an evidentiary hearing or trial. We do not consider Dr. Knoll's testimony speculative for purposes ofdefending a summaryjudgmentmotion. 

### Volk, 184 Wn. App. at 432. The Court ofAppeals offered no precedential support and no reasoning for its bifurcated analysis, nor does Volle defend the Court of Appeals' reasoning. Because the Court of Appeals' reasoning is unsupported by Washington law, we reject the viewthat there are differing standards ofspeculation permitted at the summaryjudgment and evidentiaryphases. Still, despite Ashby's disagreement with Knoll's conclusions, the trial court did not err by admitting Knoll's affidavit. ER 702 states that a court may permit a witness qualified as an expertto provide an opinionregarding "'scientific,technical,

or other specialized knowledge'" ifsuch testimony '"will assist the trier offact."' 

### State v. Yates, 161 Wn.2d714, 762, 168 P.3d 359 (2007)(quoting

### State v. Cauthron, 120 Wn.2d 879, 890, 846 P.2d 502 (1993), 

### overruled in

### part on other grounds by 

### 40Volk v. DeMeerleer, No. 91387-1 State v. Buckner, 133 Wn.2d 63, 941 P.2d 667 (1997)). Admissionis properprovided the expert is qualified and his or her testimony is helpful. Id. The expert's opinion must be based on fact and cannot simply be a conclusion orbased on an assumption ifit is to survive summaryjudgment. Melville v. State, 115 Wn.2d 34, 41, 793 P.2d 952 (1990). Unreliable testimony is not considered helpful to the trier offact and should be excluded. Lakey v. Puget SoundEnergy, Inc., 176 Wn.2d 909, 918, 296 P.3d 860 (2013) (citingAndersonv. AkzoNobel Coatings, Inc., 172 Wn.2d 593, 600, 260 P.3d 857 (2011)). Importantly, speculation and conclusory statements will not preclude summaryjudgment.Elcon Constr., Inc. v. E. Wash. Univ., 174 Wn.2d 157, 169,273 P.3d 965 (2012) (citing Greenhalgh v. Dep'tofCorr., 160 Wn. App. 706, 714, 248 P.3d 150 (2011)). The concern about speculative testimony is thatthe trier offact will be forced to speculate as to causation without an adequate factual basis. Little v. King, 160 Wn.2d 696, 705, 161 P.3d 345 (2007). When Washington courts have previously refused to admit expert testimony

as speculative, admission hinges on the expert's basis for forming the opinion, not
on the expert's conclusions. When an expert fails to ground his or her opinions on facts in the record, courts have consistently found that the testimony is overly speculative and inadmissible. See, e.g., Moore v. Hagge, 158 Wn. App. 137, 241 P.3d 787 (2010); State v. Johnson, 150 Wn. App. 663, 208 P.3d 1265 (2009); State

41

### Volkv. DeMeerleer, 

### No. 91387-1

v. Lewis, 

### 141 Wn. App. 367, 166 P.3d 786 (2007); Doyle v. Nor-W Pac. Co., 

### 23 Wn. App. 1, 5-6, 594 P.2d 938 (1979). Although Ashby and the Clinic disagree with Knoll's conclusions, his opinions, when considered in light of previous determinations on speculative testimony, are admissible. Knoll was familiar with the standard of care in Washington State through his consultation with a psychiatric colleague m 

### Washington. CP at 83-84. Knoll has an extensive background in psychiatric treatment and related psychiatric clinical issues. Id. 

### Knoll opined that Ashby failed to meet the requisite standard ofcare for psychiatrists practicing in Washington by failing to follow up with DeMeerleer, make a focused inquiry into DeMeerleer's condition, adequately assess DeMeerleer's suicidal andhomicidalrisks, andmonitor DeMeerleer's condition and response to treatment. CP at 87-90. Knoll based his opinion on DeMeerleer's clinical records, law enforcement files and reports surrounding the attack, and autopsy and toxicologyreports. CP at 83. Given Knoll's reliance on the record, the factual underpinnings of the case, and DeMeerleer's treatment history with Ashby, his opinions were not speculative and the trial court did not err by considering them for summaryjudgment. C. The loss ofchance doctrine is inapplicable to the facts ofthis case As part of Yolk's medical malpractice claim, she asserts that Ashby's allegedly deficient treatment resulted in a loss of a chance for survival and better 42

### Volk v. DeMeerleer, No. 91387-1 outcome for Schiering andher sons. Ashby contends that in order to establish a loss ofchance claim, an expertopinionmust statethe conclusioninterms ofapercentage oflost chance. We need not reach Ashby's argument about the requirement for an actual percentage. We affirm andholdthe loss ofchance doctrine does not apply to Yolk's claim. In Washington, the loss ofchance can be a compensable injury in a medical malpractice action. 

### Mohr v. Grantham, 172 Wn.2d 844, 857, 262 P.3d 490 (2011) (permitting loss of chance for a better outcome between doctor and negligently treated patient); 

### Herskovits v. Grp. Health Coop. of Puget Sound, 99 Wn.2d 609, 664 P.2d 474 (1983) (plurality opinion) (permitting loss ofchance claim between doctor and estate ofnegligentlytreatedpatient);

### Rash v. ProvidenceHealth & 

### Servs., 183 Wn. App. 612, 334 P.3d 1154 (2014) (permitting loss ofchance claim between negligently treated patient and provider), 

### review denied, 182 Wn.2d 1028, 347 P.3d 459 (2015). Yolk contends that the loss of chance may also be a substitute for the requirement ofactual, "but for" causation, citing to Justice Dore's lead opinion in 

### Herskovits, 99 Wn.2d at 616. Under either formulation, the plaintiffstill bears the burden ofproving duty, breach, causation, and harm-the approaches differ only in the determination ofcausation and in the ultimate harm. 

### Mohr, 172 Wn.2d at 857.

43

### Volk v. DeMeerleer, No. 91387-1 Yolk claims Ashby's negligence caused Schiering and her family's entire chance for survival to be lost. This argument fails under either approach because the loss of a chance doctrine is inapplicable if the plaintiff is alleging that the defendant's negligence actually caused the unfavorable outcome-the tortfeasors wouldthen be responsible for the actual outcome, not for the lost chance. 

### See Alice Perot, 

### The Theory of Loss ofChance: Between Reticence andAcceptance, 8 FLA. INT'L U. L. REv. 591, 596 (2013) ("Ifthe patienthad a 100% chance to be cured or saved and the tortious act ofthe physician caused all this chance to be lost, then the tortfeasor is responsible for the unfavorable outcome, not the loss of chance."). Further, this claim is indistinguishable from Yolk's medical negligence claim, as Yolk alleges the same duty, the same negligent actions, and the same harm.



### 44

### Volkv. DeMeerleer, No. 91387-1 IV. CONCLUSION Weholdthat 1) a specialrelationship existedbetweenAshby andDeMeerleer requiring Ashby to affirmatively protect the foreseeable victims ofDeMeerleer, 2) Yolk's expertwitnesstestimonywas notoverly speculativebutthe CourtofAppeals erred by applying its differing levels of speculation analysis, and 3) the loss of chance doctrine does not applyto Yolk'sclaim. Accordingly, wereverse inpart, and affirm inpart, the CourtofAppeals' decision, and remand the case to the trial court

so that itmayresolve Yolk's medical negligence claim.



### 45

### Volin. DeMeerleer, No. 91387-1

WE CONCUR:



### J

46Volk (Beverly R.) eta!. v. DeMeerleer (James B.) eta!.

No. 91387-1
WIGGINS, J. (dissenting)-! agree with the majority on one of two points. I agree that medical malpractice suits are generally not available to nonpatient third parties. Majority at 12. We have never recognized a claim for medical malpractice brought by a nonpatient third party against a physician. See Paetsch v. Spokane Dermatology Clinic, PS, 182 Wn.2d 842, 850 n.6, 348 P.3d 389 (2015). I therefore join in the majority's opinion to the extentthat it reverses the Court ofAppeals on this issue and rejects Beverly Volk's medical malpractice claim. However, I do not agree thatVolk presented a viable medical negligence claim. Indeed, our analysis should end upon establishing the medical malpractice claim's failure. While the majority proceeds to take up Volk's medical negligence claim, Washington law establishes medical malpractice as the exclusive means of recovery for a health-care-related injury: "No award shall be made in any action

...for damages for injury occurring as the result of health care," except in the following three circumstances: (1) where the health care provider failed "to follow the accepted standard of care," (2) where the provider "promised

... that the injury suffered would not occur," or (3) where the patient did not consent to treatment that resulted in injury. RCW 7.70.030. The first category describes negligence actions. 1 Here, the claim

1See 16 DAVID K. DEWOLF& KELLERW. ALLEN, WASHINGTON PRACTICE: TORT LAW AND PRACTICE § 16:4, at 674-75 (4th ed. 2013) (noting that medical negligence claims are brought under RCW 7.70.030).Volk (Beverly R.) eta/. v. DeMeerleer (James B.) eta/. (Wiggins, J., dissenting)
fails to meet the requirements for medical malpractice; thus the party cannot recover "for injury occurring as the result of health care," id., as the majority permits here, majority at 13. Even ifwe allowfor a medical negligence claim outside the medical malpractice framework, I strongly disagree with the majority's interpretation of Restatement (Second) of Torts§§ 315-319 (Am. Law lnst. 1965) (Second Restatement), and with the majority's unheralded adoption ofthe substantially broadened Restatement(Third) of Torts: Liability for Physical and Emotional Harm§ 41 (Am. Law lnst. 2012) (Third Restatement).2 The Second Restatement§ 315 states that "[t]here is no duty to so control the conduct of a third person ... unless

... a special relation exists." The Third Restatement, however, and the majority's holding, would broaden the special relationship exception to encompass any mental health professional, and by its reasoning any ongoing relationship of influence, regardless of that person's ability or inability to exercise the control required. This expansion of liability is unsupported either by our case law or by the Second Restatement §§ 315-319; the majority functionally adopts the Third Restatement§ 41, declining to find any capacity for control before imposing a dutyto control. Such a substantial transition should be made plainly, explicitly, and only after full discussion and careful consideration-none ofwhich has happened here.

2 The Third Restatement§ 41 explicitly replaces the Second Restatement§§ 315(a), 316, 317, and 319. See RESTATEMENT (THIRD)§ 41 cmt. a. 2Volk (BeverlyR.) eta/. 

### v. DeMeerleer (James B.) eta/. (Wiggins, J., dissenting)
Nor do I think such an expansion of liability is wise, as it singles out mental health professionals to uniquely answerfor the actions ofothers againstthird parties. Moreover, broadening the duties and potential liabilities of these professionals threatens to chill critical mental health services, while sparking unnecessary litigation. For these reasons, I respectfully dissent. I. The Second Restatement Does Not Establish a DutyTo Control Where There Is NoAbility To Control Generally, there is no dutyto protect third parties from the actions ofothers. At issue is the Second Restatement § 315(a) exception to this rule: Where a "special relation" exists with the person causing the harm, there is a dutyto control the person so as to prevent harm to a third party. We have adopted this provision as an exception to Washington common law, which generally precludes tort liability for the actions of others against third parties. See Petersen v. State, 100 Wn.2d 421, 426, 671 P.2d 230 (1983) (citing Lipari 

### v. Sears, Roebuck & Co., 497 F. Supp. 185, 188 (D. Neb. 1980)). The Second Restatement enumerates instances of such special relationships in the subsequent sections,§§ 316-319. See Hertog v. City ofSeattle, 138 Wn.2d 265, 277, 979 P.2d 400 (1999) (noting that there are "several special relationships described in the RESTATEMENT (SECOND) OF TORTS," with§ 319 being most relevant to that case); see also Taggart

### v. State, 118Wn.2d 195, 219, 822 P.2d 243 (1992)(noting the sections following § 315 "define various 'special relations' that, in accordance with the general principle stated in § 315, give rise to a duty to control a third person"). As

3Volk (Beverly R.) eta/. v. DeMeerleer (James B.) eta!. (Wiggins, J., dissenting) § 315 requires a party to exercise control, the ensuing sections list relationships allowingfor such control. This understanding is consistent with our approach to third-party liability in Binschus v. Department ofCorrections, 186 Wn.2d 573, 578-81, 380 P.3d 468 (2016). In that case, we considered what special quality triggers a§ 315 special relationship, thereby creating a duty to control the conduct of others. "Crucial to our analysis," we emphasized, "is the nature ofthat duty: 'to controlthe third person's conduct.'" /d. at 578 (internal quotation marks omitted) (quoting RESTATEMENT (SECOND) OF TORTS § 315). In Binschus, we explained that some of our case law may be misinterpreted to suggest that there is "a broad duty to prevent all reasonably foreseeable dangers" independent of the ability to control. /d. at 580 (noting that certain concluding language in Taggart "can be taken out ofcontext"). Thus, we clarified: [A] "duty

... to control" is, indeed, a duty to control. We did not previously, and do not today, expand it to a general duty to prevent a person from committing criminal acts in the future. /d. at 580-81 (second alteration in original) (quoting RESTATEMENT (SECOND) OF TORTS § 319). In contrast to this careful cabining of§§ 315 to 319 duties, here the majority asserts that "there is no prerequisite of actual control" before imposing a duty to control. Majority at 21 n.1 0. This result we plainly foreclosed in Binschus. Nor is the majority's interpretation consistent with the language of the Second Restatement §§ 315 to 319. When we interpret nonexclusive lists, we follow the interpretational canon of ejusdem generis. Ejusdem generis requires that '"specific terms modify or restrict the application of general terms where both are used in

4Volk (Beverly R.) eta/. v. OeMeerleer (James 8.) eta!. (Wiggins, J., dissenting) sequence."' State 

### v. Otton, 185 Wn.2d 673, 700, 374 P.3d 1108 (2016) (Gordon McCloud, J., concurring) (internal quotation marks omitted) (quoting State 

### v. Stockton, 97 Wn.2d 528, 532, 647 P.2d 21 {1982)). In the Second Restatement, the general term is § 315, titled "General Principle"; the special relationships in the following sections (each describing a specific "Duty") constitute the specific terms. The feature common to the enumerated specific sections is the ability to exercise control in the special relationship:§ 316 describes a parent's control over a child;§ 317 describes a master's control over a servant;§ 318 describes a landowner's control over the use of his/her land; 3 and § 319 describes a person's duty to exert control when taking charge of another. See Binschus, 186 Wn.2d at 581 n.3 ("[T]he concept of 'control' must be a part ofany§ 319 analysis."). Thus, the list, §§ 316-319, while not exclusive, narrows the scope of special relationships to those situations where the ability to control exists. This narrowing is also logical, as without the abilityto control, the§ 315 requirement to exercise control would be to no effect; one cannot use what one does not have. Critically, this requirement to exercise "control" is shed by the Third Restatement, instead requiring "reasonable care." RESTATEMENT (THIRD) OF TORTS§ 41 (a). In contrast to the language ofthe Second Restatement, the majority seeks to impose the§ 315 duty to control on an outpatient relationship in which the ability to control is expressly absent. Volk concedes that Howard Ashby lacked the ability to

3 More specifically, the SecondRestatement§ 318(a) confines any duty owed by a landowner to those situations in which "he has the ability to control" the person using or in possession of his land. 5Volk (Beverly R.) eta/. 

### v. OeMeerleer (James B.) eta/. (Wiggins, J., dissenting)
control his outpatient James DeMeerleer; this lack was the reason for the failure of Volk's § 319 argument, as§ 319 imposes a duty to control when one "takes charge" ofa dangerous person. Where the dutyto exert control is required by§ 315, I cannot agree with the majority's assertion that "the amount ofcontrol or the nature of control [in the relationship]

... is not determinative" for a Second Restatement analysis. Majority at 21-22. The majority further holds that a "definite, established, and continuing relationship" is sufficient to create a "duty to protect against foreseeable dangers" under §315. /d. at 14-15 (citing Honcoop 

### v. State, 111 Wn.2d 182, 193, 759 P.2d 1188 (1988)). However, in Honcoop, we refused to impose a§ 315 duty to protect third parties precisely because there was a lack of control. 111 Wn.2d at 193 ("Regulatory control over a third party is not sufficient to establish the necessary control which can give rise to an actionable duty."). We declined to broaden the scope ofthe special relationship beyond the sphere of an ability to control. In Petersen, we similarly found that there was an ability to exercise control before imposing a § 315 duty to exercise control: In Petersen, the dangerous party was involuntarily incarcerated and subject to the control of doctors and hospital staff. 100 Wn.2d at 423-24. Petersen does not stand for the proposition that any therapistpatient relationship constitutes a special relationship, triggering a duty to exercise control; rather, it acknowledged that control existed, and from there required that control be exercised. We recently restated this interpretation of Petersen, highlighting that "the injury to the plaintiff was a foreseeable consequence ofthe failure to control

6Volk (Beverly R.) eta/. 

### v. DeMeerleer (James B.) eta!. (Wiggins, J., dissenting)
the patient." Binschus, 186 Wn.2d at 582. The majority's contention that "under Petersen,

... a duty exists without regard for the 'control' principle" is thus novel and contradicted by our language in Binschus. Majority at 21. In its holding, the majority would expand the duty to intervene for the benefit of third parties wherever a "definite, established, and continuing relationship" exists; while appearing to apply this definition only to mental health professionals pursuant to the Third Restatement § 41 comment g, the majority's reasoning could easily encompass teammates, partners, and other ongoing relationships in which control is absent but influence exists. Imposing a duty to protect third parties from the actions of others wherever a "definite, established, and continuing relationship exists" is unsupported by our case law or the Second Restatement. I can conclude only that the majority instead invokes and quietly adopts the expansive language of the Third Restatement, free ofthe need for "control." II. The Third RestatementWould Substantially Broaden Liability to Third Parties Who Are Injured by Others The Third Restatement§ 41, as adopted by the majority, departs substantially from the Second Restatement §§ 315 to 319. Rather than requiring a controlling relationship before imposing a duty to exercise control, the Third Restatement's comments explicitly state that control is not necessary in mental health contexts.4

4 See RESTATEMENT (THIRD) OF TORTS § 41 cmt. g (noting that "reasonable care may require providing appropriate treatment, warning others ofthe risks posed by the patient, seeking the patient's agreement to a voluntary commitment, making efforts to commit the patient involuntarily, or taking other steps to ameliorate the risk posed by the patient"). Thus, a practitioner could be expected to violate patient confidentiality by contacting county7Volk (Beverly R.) eta/. 

### v: DeMeerleer (James B.) eta!. (Wiggins, J., dissenting)
Under the Third Restatement, the ability to seek the involuntary commitment of an outpatient is sufficient to give rise to a duty to act. As a result of the majority's holding, a special relationship invoking an uncommon duty to act to protect third parties from others is imposed, not merely on the basis of relationships of control-be it master and servant, parent and child-but
on the basis of any relationship of influence that is "definite, established, and continuing." Majority at 21. Control is unnecessary; action must be taken where "reasonable." /d. at22-23. This decision strays farfrom describing a narrowexception imposing liability only for the actions ofthose already within one's control; instead, the exception swallows the rule. Notably, the Third Restatement § 41 (b)(4), concerning the liability of mental health professionals, has not been explicitly adopted by any state, nor have the implications of its adoption been fully explored. On the contrary, where§ 41 has been considered in other states, those courts have declined to rely on it. See Kuligoski v. Brattleboro Retreat, 2016 VT 54,**~** 44,

_ A.3d

_ (2016) ("Although we have discussed it above for background, we have not adopted and relied upon§ 41(b)(4) of the Restatement (Third) of Torts.'V Here, the majority sheds the Second
designated mental health professionals, who would then evaluate the case and, in their discretion, petition the court for involuntary commitment of a given patient. RCW 71.05.150(1)(a)-(b). A patient could then be involuntarily committed ifthere is evidence that the patient's actions "constitute a likelihood of serious harm" or that the patient is otherwise severely disabled. RCW 71.05.160. 5 Massachusetts's Supreme Judicial Court noted the changes promulgated by the Third Restatementin its 2009 Leavitt v. Brockton Hospital, Inc. case, but neither explicitly adopted it nor discussed its implications. 454 Mass. 37, 41, 907 N.E.2d 213 (2009); see also Roe
8Volk (Beverly R.) eta/. 

### v. DeMeerleer (James B.) eta/. (Wiggins, J., dissenting)
Restatemenfs "control" principle and adopts instead broad new liability inherent in the Third Restatement; yet this step is taken without carefully considering the ramifications ofsuch a transition. If it is indeed appropriate to so broaden the duty to answer for the actions of others, it behooves us to articulate the precise scope ofthis new duty, to whom it will apply, and why we make such a change. Ill. Public Policy Does Not Support Broadening Liability forActs by Others Where There Is No Ability To Control The majority supports the imposition of broad liability on mental health professionals by highlighting the public's interest in safety from violent assaults bythe mentally ill. Majority at 26-27. While I agree that there is a strong policy interest in protecting the public, imposing liability on mental health professionals for the potential actions oftheir patients seems an uncertain means ofachieving this public protection. The majority accepts as unquestioned the proposition that expanding liability advances the public's interest in safety; yet there are a number of reasons why this may not be the case: First, excessive involuntary commitment greatly harms those unnecessarily confined. 6 See Br. of Amicus Curiae of Wash. State Psychological Ass'n at 10-11. Second, alerting the authorities, in the absence of a clear target or

No. 1 v. Children's Hasp. Med. Ctr., 469 Mass. 710,714, 16 N.E.3d 1044 (2014) (mentioning but not discussing the Third Restatement§ 41 ). Connecticut'sAppellate Court also noted the Third Restatement's development, while declining to embrace it absent adoption by that state's Supreme Court. Cannizzaro v. Marinyak, 139 Conn. App. 722, 734, 57 A.3d 830 (2012), aff'don othergrounds, 312 Conn. 361, 93 A.3d 584 (2014). 6 It is worth emphasizing that the mentally ill constitute a part of, not simply a threat to, our public body. 9Volk (Beverly R.) etat. v. DeMeerleer (James B.) et at. (Wiggins, J., dissenting)
imminent threat by the patient, hardly assists in the prevention of harm (while breaching patient confidentiality). See Br. ofAmicus Curiae ofWash. State Med. Ass'n et al. at 14. Third, the risk ofinvoluntarycommitmenton the one hand and aweakened confidentiality shield on the other hand may actively discourage the mentally ill from seeking treatment. It seems contrary to the public interest to transform therapy sessions into a doorway to involuntary commitment; chilling treatment harms, rather than protects, the public body. 7 Thus, while I would decline to consider a medical negligence case divorced from the comprehensive medical malpractice framework, Iwould also require that the abilityto control be first established before imposing a dutyto control the acts ofothers to protect third parties. IV. Conclusion While I agree that Volk failed to present a viable medical malpractice claim, I disagree with the majority's conclusion that any mental health professional's relationship with a patientgives rise to a general dutyto protectthird parties from harm by those patients. This is a substantial and unheralded departure from our previous
case law and from the Second Restatement. Like the majority, I would reverse the Court ofAppeals and reject the medical malpractice claim. However, I would affirm

7 When the legislature cabined Petersen in RCW 71.05.120, it emphasized the importance of balancing both public safety and patient privacy. As a result, designated crisis responders, tasked with reviewing patients for potential involuntary commitment, are required to take reasonable precautions in case of violent behavior only where there is "an actual threat of physical violence against a reasonably identifiable victim." RCW 71.05.120(3). 10Volk (Beverly R.) eta/. 

### v. DeMeerleer (James B.) eta/. (Wiggins, J., dissenting)
the trial court's grant of summary judgment in favor of Ashby and the Spokane Psychiatric Clinic on all issues, and thus respectfully dissent.

11Vo/k (Beverly R.) eta/. v. DeMeerleer(James B.) eta/. (Wiggins, J., dissenting)

12