*

Although not requested by counsel for the appellants, the court has sua

sponte changed the full names of two of the plaintiffs-appellants in this action to

just initials. This change was made in an attempt to guard in some measure the

privacy of these parties, who were minors when many of the operative facts

involved in this case took place. 

FILED

United States Court of Appeals

Tenth Circuit

June 21, 2010

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JAMES FREDERICKS; BROOKE

FREDERICKS; E.F., S.F.*

,

Plaintiffs - Appellants,

v. Nos. 09-1169, 09-1237

MARY MARGARET JONSSON,

Ph.D.,

Defendant - Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

(D.C. NO. 1:06-CV-00957-MSK-KLM)

William S. Finger, Frank & Finger, P.C., Evergreen, Colorado, (Robert A.

Weinberger, Weinberger & Cavanaugh, P.C., Denver, Colorado, with him on the

briefs), for Plaintiffs - Appellants.

Kathleen M. Kulasza, (Miles M. Dewhirst, Patrick J. Maggio, with her on the

brief), Dewhirst & Dolven, LLC, Colorado Springs, Colorado, for Defendant -

Appellee.

Before HENRY, TACHA, and HARTZ, Circuit Judges.

Appellate Case: 09-1169 Document: 01018444796 Date Filed: 06/21/2010 Page: 1 
-2-

HARTZ, Circuit Judge.

James and Brooke Fredericks and their daughters, E.F. and S.F.,

(collectively the Plaintiffs) sued Dr. Mary Margaret Jonsson, a licensed

psychologist, for failing to warn them of the danger posed by Troy Wellington. 

Wellington had attempted to break into the Plaintiffs’ home a few days after

Dr. Jonsson had evaluated him for the Colorado probation department. The

district court granted summary judgment in favor of Dr. Jonsson, ruling that

Colorado’s mental-health-professional liability statute, Colo. Rev. Stat.

§ 13-21-117 (Section 117), protected Dr. Jonsson from the Plaintiffs’ claims.

We have jurisdiction under 28 U.S.C. § 1291 and affirm. We hold (1) that

Section 117 applies in the circumstances of this case and (2) that the statute did

not require Dr. Jonsson to warn the Plaintiffs because Wellington had not

communicated to Dr. Jonsson any serious threat of imminent physical violence

against them.

I. FACTUAL AND PROCEDURAL BACKGROUND

Because this appeal is from a grant of summary judgment to Dr. Jonsson,

we must view the facts in the light most favorable to the nonmoving party, the

Plaintiffs. See Milne v. USA Cycling Inc., 575 F.3d 1120, 1122 n.1 (10th Cir.

2009). The Plaintiffs have had an unfortunate history with Wellington. Starting

in 2000, when Wellington was the Plaintiffs’ neighbor, he began stalking E.F. and

Appellate Case: 09-1169 Document: 01018444796 Date Filed: 06/21/2010 Page: 2 
-3-

S.F. This continued until January 2004, when Wellington was convicted in

Colorado state court of stalking. He was sentenced to an eight-year term of

probation. One condition of his probation was that he complete a “Mental health

evaluation/counseling or treatment.” App., Vol. III at 329. 

For several years before his conviction Wellington had been a regular

patient of Dr. Ragnar Storaasli, his private psychologist; and Wellington

continued to see Dr. Storaasli weekly after his conviction. Dr. Storaasli did not

treat Wellington with any medication. Shortly after being placed on probation,

however, Wellington was hospitalized for having suicidal thoughts following a

drinking incident, and he was given antidepressant medication while hospitalized.

After his release from the hospital, Wellington saw Dr. Edward Smith in addition

to Dr. Storaasli. Dr. Smith made no change to Wellington’s antidepressant

prescription.

This episode apparently prompted the probation department to ask Parker,

Froyd & Associates, a mental-health-services provider, to perform a full mentalhealth evaluation of Wellington. According to an evaluation-request form

completed by the probation department, the purposes of the evaluation were to: 

• Provide Diagnostic Determination (V Axis)

• Assess Dual Diagnosis

• Assess Major Mental Illness 

• Assess Risk—To Community / Re-offense 

• Assess Risk—Violent or Aggressive Behavior

• Assess Risk—Victimization Potential

• Assess Risk—Suicide Potential

Appellate Case: 09-1169 Document: 01018444796 Date Filed: 06/21/2010 Page: 3 
-4-

• Assess Need for Medication / Med. Eval. 

• Assess Substance Abuse Patterns / Potential

• Assess Amenability to Treatment.

Id. at 327. Wellington signed releases allowing disclosure to the probation

department, Dr. Smith, and Dr. Storaasli of information relating to the evaluation.

Dr. Jonsson was the psychologist assigned to Wellington by Parker, Froyd. 

On May 12, 2004, she conducted her examination, which included testing and an

interview. According to Dr. Jonsson’s evaluation report and Wellington’s

deposition testimony, Wellington told Dr. Jonsson that he used to have frequent

violent fantasies involving members of the Fredericks family, but that he no

longer had violent thoughts directed at them. Dr. Jonsson did not convey any

warnings to the probation department or the Plaintiffs, and she issued her report

on June 30.

On May 26, 2004, two weeks after the examination, Wellington got drunk

and stole a car. He drove to the Plaintiffs’ home and broke a window, apparently

in an attempt to break in. But he was frightened by a security alarm and ran into

a neighbor’s yard, where he was later found passed out.

In May 2006 the Plaintiffs filed a suit based on this episode in the United

States District Court for the District of Colorado. Their amended complaint

named Dr. Jonsson (and a number of other individuals and entities no longer

parties to this case), claiming that she had negligently failed to warn them or the

probation department of the danger posed by Wellington. Dr. Jonsson moved for

Appellate Case: 09-1169 Document: 01018444796 Date Filed: 06/21/2010 Page: 4 
-5-

summary judgment on the ground that Section 117 protected her from liability

because Wellington had not made a specific threat against the Plaintiffs. The

district court granted the motion.

II. DISCUSSION

We review de novo the district court’s grant of summary judgment. See

Evers v. Regents of Univ. of Colo., 509 F.3d 1304, 1308 (10th Cir. 2007). 

Summary judgment is appropriate “if the pleadings, the discovery and disclosure

materials on file, and any affidavits show that there is no genuine issue as to any

material fact and that the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(c)(2). Because the court’s jurisdiction was based on diversity of

citizenship, see 28 U.S.C. § 1332, we apply the substantive law of Colorado, see

Vitkus v. Beatrice Co., 127 F.3d 936, 941 (10th Cir. 1997). We begin by

summarizing the scope and meaning of Section 117. We then address the

Plaintiffs’ arguments against application of Section 117 in this case. Finally, we

apply Section 117 to the facts before us.

A. Section 117

Section 117 provides in general that a “mental health professional . . . shall

not be liable for damages in any civil action for failure to warn or protect any

person against a mental health patient’s violent behavior, and any such person

shall not be held civilly liable for failure to predict such violent behavior.” Colo.

Appellate Case: 09-1169 Document: 01018444796 Date Filed: 06/21/2010 Page: 5 
1

Section 117 states in full:

Civil liability—mental health care providers—no duty

A physician, social worker, psychiatric nurse, psychologist, or other

mental health professional and a mental health hospital, community

mental health center or clinic, institution, or their staff shall not be

liable for damages in any civil action for failure to warn or protect

any person against a mental health patient’s violent behavior, and

any such person shall not be held civilly liable for failure to predict

such violent behavior, except where the patient has communicated to

the mental health care provider a serious threat of imminent physical

violence against a specific person or persons. When there is a duty

to warn and protect under the circumstances specified above, the

duty shall be discharged by the mental health care provider making

reasonable and timely efforts to notify any person or persons

specifically threatened, as well as notifying an appropriate law

enforcement agency or by taking other appropriate action including,

but not limited to, hospitalizing the patient. A physician, social

worker, psychiatric nurse, psychologist, or other mental health

professional and a mental health hospital, community mental health

center or clinic, institution, or their staff shall not be liable for

damages in any civil action for warning any person against or

predicting a mental health patient’s violent behavior, and any such

person shall not be subject to professional discipline for such

warning or prediction. For the purposes of this section, “psychiatric

nurse” means a registered professional nurse as defined in section

12-38-103(11), C.R.S., who by virtue of postgraduate education and

additional nursing preparation has gained knowledge, judgment, and

skill in psychiatric or mental health nursing. The provisions of this

section shall not apply to the negligent release of a mental health

patient from any mental health hospital or ward or to the negligent

failure to initiate involuntary seventy-two-hour treatment and

evaluation after a personal patient evaluation determining that the

person appears to have a mental illness and, as a result of the mental

illness, appears to be an imminent danger to others.

Colo. Rev. Stat. § 13-21-117.

-6-

Rev. Stat. § 13-21-117.1 A duty does arise, however, “where the patient has

Appellate Case: 09-1169 Document: 01018444796 Date Filed: 06/21/2010 Page: 6 
-7-

communicated to the mental health care provider a serious threat of imminent

physical violence against a specific person or persons.” Id. In that event the

mental-health professional can escape liability only by “making reasonable and

timely efforts to notify any person or persons specifically threatened, as well as

notifying an appropriate law enforcement agency or by taking other appropriate

action including, but not limited to, hospitalizing the patient.” Id. In addition,

Section 117 excludes from its scope any negligent evaluation to determine

whether a patient should be involuntarily confined, or continue to be involuntarily

confined, in a mental-health hospital. The statute states: 

The provisions of this section shall not apply to the negligent release

of a mental health patient from any mental health hospital or ward or

to the negligent failure to initiate involuntary seventy-two-hour

treatment and evaluation after a personal patient evaluation

determining that the person appears to have a mental illness and, as a

result of the mental illness, appears to be an imminent danger to

others.

Id. In essence, the statute recognizes, even if it does not create, a cause of action

for negligence in those circumstances.

B. Applicability of Section 117 to this Case

The Plaintiffs’ arguments on appeal raise two challenges to the district

court’s ruling. First, they contend that Section 117 does not govern Dr. Jonsson’s

duty to them. Second, they contend that even if the statute applies, Dr. Jonsson

had a duty to warn them about Wellington because he had communicated to her a

serious threat of imminent physical violence against them. 

Appellate Case: 09-1169 Document: 01018444796 Date Filed: 06/21/2010 Page: 7 
-8-

1. Does Section 117 Govern?

The Plaintiffs’ arguments are not entirely clear. But as best we can tell,

they contend that Section 117 is inapplicable to their claim because (1)

Dr. Jonsson did not treat Wellington but performed only what they term a

“forensic” evaluation and (2) Wellington waived any rights he may have had to

confidentiality from Dr. Jonsson. They argue that the language of the statute

restricts its application to a relationship between a therapist and a “patient”

receiving treatment. And they assert that “[w]hat the legislative history of

[Section 117] indicates is that the purpose of the statute was to balance

confidentiality in a treatment situation (in-patient and out-patient) with social

need for protection of individuals who would be targeted by persons suffering

mental illness.” Aplt. Br. at 33. On this latter point, however, the Plaintiffs’

brief neither cites, nor even mentions, what would ordinarily be considered

legislative history, such as committee reports or floor debates. But the brief does

discuss common-law precedents at some length, so we assume that by “legislative

history,” the Plaintiffs mean the common-law context of the statute. They also

claim support for their position in the Colorado victim-rights statute. 

We first address the language and common-law context of Section 117, and

conclude that the statute applies in this case. We then consider the Colorado

victim-rights statute and conclude that it is irrelevant to the issue before us.

Appellate Case: 09-1169 Document: 01018444796 Date Filed: 06/21/2010 Page: 8 
-9-

a. Language and Common-Law Context of Section 117.

The Plaintiffs’ best argument is based on the use of the word patient in

Section 117. The first sentence of the statute states: 

A . . . mental health professional . . . shall not be liable for damages

in any civil action for failure to warn or protect any person against a

mental health patient’s violent behavior, and any such person shall

not be held civilly liable for failure to predict such violent behavior,

except where the patient has communicated to the mental health care

provider a serious threat of imminent physical violence against a

specific person or persons.

 

Colo. Rev. Stat. § 13-21-117 (emphases added). The statute does not define

patient, nor does it state explicitly that it applies only when the violent person has

been treated by the mental-health professional. But the Plaintiffs contend that the

ordinary meaning of the word patient is a person receiving treatment. 

The Plaintiffs’ best example of this usage is the Colorado Supreme Court

opinion in Martinez v. Lewis, 969 P.2d 213 (Colo. 1998). In that case Dr. Lewis

conducted an independent medical examination (IME) of Martinez for her insurer

“to evaluate the existence and extent of Martinez’s claimed neurological injuries.” 

Id. at 215. After repeated evaluations he concluded that she was faking her

injuries. See id. at 216. She sued Dr. Lewis for negligence, alleging that he had

erred in his diagnosis, resulting in her not receiving necessary treatment. See id.

The court held that he owed her no duty to diagnose her correctly. See id. at 220. 

In explaining that a physician’s duties depend on the purpose of the medical

Appellate Case: 09-1169 Document: 01018444796 Date Filed: 06/21/2010 Page: 9 
-10-

examination, the court used the word patient to refer to one who is being treated,

as opposed to one who is being examined only for an IME. It wrote: 

Martinez sought psychological and psychiatric treatment from her

own health care providers. Martinez does not contend that she

sought medical advice or treatment from Dr. Lewis, [or] that he

advised her in any way . . . . 

The agreement between [the insurer] and Dr. Lewis was solely for

the insurance company’s benefit. Under that agreement, Dr. Lewis’s

obligations were to report to [the insurer] his opinions regarding the

diagnosis, prognosis, and other pertinent information regarding any

treatment Martinez might need. Thus, . . . no physician-patient relationship

existed between Dr. Lewis and Martinez.

See id. at 218–19 (emphasis added).

Martinez is certainly helpful to the Plaintiffs. But it is hardly dispositive

on the meaning of the term patient in a Colorado statute. At least as compelling

as the authority of Martinez, but in the opposite direction, is the Colorado

legislature’s use of the word patient to describe the same relationship at issue in

Martinez. The Colorado statute setting forth the duties of independent medical

examiners, who do not provide treatment but conduct examinations only for

insurance purposes, refers to the persons being examined as “patients.” Indeed,

the statutory title is, “Accountability of Independent Medical Examiners to Their

Patients.” Colo. Rev. Stat. § 10-16-601; see also id. § 10-16-602(3) (defining

patient as “an individual covered by, or denoted as an insured, subscriber,

enrollee, or purchaser under any health coverage or health benefit or health care

services certificate, agreement, contract, policy, or plan.”). 

Appellate Case: 09-1169 Document: 01018444796 Date Filed: 06/21/2010 Page: 10 
-11-

In addition, in the section of the psychologist licensing statute entitled

“Practice of psychology defined,” the Colorado legislature appears to use the

word patient in a broader sense than the state supreme court did in Martinez. See

id. § 12-43-303. The section includes within the practice of psychology several

types of work that do not involve treatment. For example, the first type of work

listed is “(a) Psychological testing and the evaluation or assessment of personal

characteristics such as intelligence, personality, abilities, interests, and aptitudes.” 

Id. And, most pertinent to this case, the list includes “(g) forensic psychology,

which is the science of psychology that deals with the relation and application of

psychological research and knowledge to legal issues, including, but not limited

to, assessments of competency in civil or criminal matters, legal questions of

sanity, or civil commitment proceedings.” Id. Yet even though these types of

work do not involve treatment, the only term used in the section to refer to a

person seen by a psychologist is the word patient, which appears in the general

definition of the practice of psychology: 

For the purposes of [the part of the Professions and Occupations

Code relating to Psychologists], the “practice of psychology” is

defined as the observation, description, evaluation, interpretation,

treatment, or modification of behavior, cognitions, or emotions by

the application of psychological, behavioral, and physical principles,

methods, or procedures, for the purpose of preventing or eliminating

symptomatic, maladaptive, or undesired behavior, cognitions, or

emotions and of enhancing interpersonal relationships, work and life

adjustment, personal effectiveness, behavioral health, and mental

health. Psychologists use any and all psychological principles,

methods, and devices to consider the full range of possible causes of

Appellate Case: 09-1169 Document: 01018444796 Date Filed: 06/21/2010 Page: 11 
2

The remainder of § 12-43-303 provides:

(2) The practice of psychology includes, but is not limited to:

(a) Psychological testing and the evaluation or assessment of

personal characteristics such as intelligence, personality, abilities,

interests, and aptitudes;

(b) Neuropsychological tests, assessments, diagnoses, and

treatment of neuropsychological and brain disorders;

(c) Psychotherapy, which may include psychoanalytic,

existential, cognitive, and behavioral therapies, hypnosis, and

biofeedback;

(d) Clinical and counseling psychology, which are the

sciences of diagnosis and treatment of mental, neurological,

psychophysiological, and emotional disorder or disability, alcoholism

and substance abuse, behavioral abuse including dangerousness to

self or others, and disorders of habit or conduct;

(e) Rehabilitation psychology, which is the science of

psychology dealing with the psychological aspects of physical

illness, accident, injury, or disability and rehabilitation therefrom;

(f) Health psychology, which is the science of psychology

dealing with the role of psychological factors in health and illness;

(g) Forensic psychology, which is the science of psychology

that deals with the relation and application of psychological research

and knowledge to legal issues, including, but not limited to,

assessments of competency in civil or criminal matters, legal

questions of sanity, or civil commitment proceedings;

(h) Organizational psychology, which is the science of

(continued...)

-12-

patients’ illnesses and select and apply the appropriate treatment

methods.

Id. § 12-43-303(1) (emphasis added).2

Appellate Case: 09-1169 Document: 01018444796 Date Filed: 06/21/2010 Page: 12 
2

(...continued)

assessment and intervention by an employee within his or her

organization or by a consultant retained by such organization;

(i) Community psychology, which is the science of

psychology emphasizing prevention and early discovery of potential

difficulties, rather than awaiting initiation of therapy by affected

individuals or groups, and which is generally practiced outside of an

office setting;

(j) Sports psychology, which is the science of psychology

dealing with enhancement of athletic performance utilizing principles

of psychological research, assessment, and knowledge;

(k) Psychoeducational evaluation, therapy, remediation, and

consultation; and

(l) Research psychology, which is the application of research

methodologies, statistics, and experimental design to psychological

data.

(3) Psychological services may be rendered to individuals, families,

groups, organizations, institutions, the public, and the courts.

(4) The practice of psychology shall be construed within the

meaning of this definition without regard to whether payment is

received for services rendered.

Colo. Rev. Stat. § 12-43-303.

-13-

If nothing more, the use of the term patient in the IME and licensing

statutes reflects the unavailability of a better term to describe all persons who are

seen professionally by health-care providers. 

Moreover, the common-law background to Section 117 does not support the

Plaintiffs’ arguments. Although the Plaintiffs suggest that the common-law cases

Appellate Case: 09-1169 Document: 01018444796 Date Filed: 06/21/2010 Page: 13 
-14-

show that it is the confidential, treatment relationship between a patient and a

therapist that has created limits on the liability of psychologists, a review of the

cases indicates the contrary. Not only has the confidential nature of the

relationship not been a ground for limiting liability, but the treatment of the

patient has been a ground for imposing liability. 

The general rule under the common law is that one has no duty to control

the conduct of another. But an exception can arise because of a “special

relation.” The Restatement (Second) of Torts § 315 (1965) states the exception as

follows:

There is no duty so to control the conduct of a third person as to

prevent him from causing physical harm to another unless,

(a) a special relation exists between the actor and the third

person which imposes a duty upon the actor to control the third

person’s conduct, or

(b) a special relation exists between the actor and the other

which gives to the other a right to protection.

 The California Supreme Court invoked this exception in Tarasoff v.

Regents of the University of California, 551 P.2d 334, 343 (Cal. 1976), the

leading opinion on the liability of a mental-health professional for failure to warn

or protect a third person. Tarasoff, cited in the Plaintiffs’ opening brief on

appeal, considered a suit against a psychologist by the estate of a person

murdered by his patient. Of most significance to the case before us, Tarasoff did

not treat confidentiality as a factor in its analysis of the scope of the

psychologist’s common-law duty. It considered confidentiality only after

Appellate Case: 09-1169 Document: 01018444796 Date Filed: 06/21/2010 Page: 14 
-15-

balancing various considerations, such as foreseeability and the risk of

unnecessary warnings, in arriving at what it believed to be the proper duty. See

id. at 342–46. Then, in response to an argument that the duty it was recognizing

would require psychologists to violate their duty of confidentiality, the court

acknowledged the value of safeguarding confidentiality but concluded that this

interest “must yield to the extent to which disclosure is essential to avert danger

to others.” Id. at 347. It did not indicate that the duty to warn would be broader

in the absence of a confidential relationship. McIntosh v. Milano, 403 A.2d 500

(N.J. Sup. Ct. 1979), also cited by the Plaintiffs, adopted a similar analysis. And

the Colorado Supreme Court, in its only decision regarding this common-law

duty, did not include confidentiality in its analysis regarding the scope of the duty

to disclose. See Perreira v. State, 768 P.2d 1198, 1215–20 (Colo. 1989); see also

id. at 1209–10 n.7 (quoting Tarasoff regarding confidentiality). (The Perreira

decision postdated Section 117; but the court did not apply the statute because the

underlying facts arose before Section 117’s effective date. See id. at 1210 n.8.).

Nor does the common-law background to Section 117 suggest that the

duties of a nontreating psychologist are greater than those who have treated the

dangerous person. Tarasoff’s discussion of the special-relation doctrine never

makes such a distinction. See 551 P.2d at 342–46; see also Brady v. Hopper, 570

F. Supp. 1333, 1337–38 (D. Colo. 1983) (applying Colorado law; discussing

special relationship between therapist and patient), aff’d, 751 F.2d 329 (10th Cir.

Appellate Case: 09-1169 Document: 01018444796 Date Filed: 06/21/2010 Page: 15 
3

We note that in any event Dr. Jonsson’s evaluation of Wellington was

intended in part to be a first step to possible therapy. Dr. Jonsson was directed to

diagnose Wellington’s condition and to assess his needs for medication and his

amenability to treatment. Hence, to the extent that the Plaintiffs’ argument rests

on the premise that Dr. Jonsson’s evaluation of Wellington had no therapeutic

purpose, the record undermines the argument. 

-16-

1984). If anything, the absence of a therapy relationship would suggest the

absence of the special relation necessary to impose any duty whatsoever on the

psychologist.3

In sum, we have been pointed to nothing in the common-law background to

Section 117 suggesting that its limits on liability are confined to the context of a

confidential, therapeutic relationship. Further, the relevant analysis conducted by

the mental-health provider—determining whether the person being evaluated is a

danger to others—would seem to be the same whether or not the person is being

treated by the provider. It would therefore be reasonable to assume that the

legislature intended the statute to address the entire subject—that is, all such

assessments by mental-health providers.

This is not to say that public policy would never support imposing on

mental-health professionals in certain contexts some common-law duties beyond

those duties recognized in Section 117 to protect third persons from the conduct

of persons they evaluate. Indeed, Section 117 itself provides two exceptions to its

general rule. The final sentence of Section 117 states:

The provisions of this section shall not apply [1] to the negligent

release of a mental health patient from any mental health hospital or

Appellate Case: 09-1169 Document: 01018444796 Date Filed: 06/21/2010 Page: 16 
-17-

ward or [2] to the negligent failure to initiate involuntary

seventy-two-hour treatment and evaluation after a personal patient

evaluation determining that the person appears to have a mental

illness and, as a result of the mental illness, appears to be an

imminent danger to others.

Colo. Rev. Stat. § 13-21-117. The Plaintiffs, however, do not suggest that either

exception applies here. We would be arrogating to this court the authority of the

Colorado legislature were we to declare an additional exception. 

b. Effect of Colorado Victim-Rights Statute

The Plaintiffs contend that the Colorado victim-rights statute supports their

claim that Section 117 is inapplicable here. They argue as follows:

As crime victims, [they] were entitled to protection pursuant to the

provisions of C.R.S. § 24-4.1-301, et seq., relating to assurances of

rights of victims and witnesses to crimes. The declaration of the act

specifically sets forth that [sic] the intent to ensure that all victims of

and witnesses to crimes are guaranteed certain protections under the

law. Rights to justice and due process are ensured under C.R.S.

§ 24.4.1-302.5. Specifically § 24-4.1-303 mandates that law

enforcement agencies, prosecutorial agencies, judicial agencies and

correction agencies shall ensure that victims of crimes are afforded

rights. C.R.S. § 24-4.1-303(5) specifies that all reasonable attempts

shall be made to protect any victim or the victim’s immediate family

from harm, harassment, intimidation or retaliation arising from

cooperating in the reporting, investigation, and prosecution of a

crime. From these and other stated rights there is no question that

probation and state actors were obligated to afford protections and

rights guaranteed under the statute. The Plaintiffs were intended

beneficiaries of protection with a right to be warned, if the criminal

Wellington contemplated harm to them, or threatened harm to them.

Aplt. Br. at 44. We are not persuaded. The victim-rights statute does not support

any expansion of liability of mental-health providers. In the first place, the

Appellate Case: 09-1169 Document: 01018444796 Date Filed: 06/21/2010 Page: 17 
-18-

statute imposes no duties on them. Its purpose is “to assure that all victims of and

witnesses to crimes are honored and protected by law enforcement agencies,

prosecutors, and judges.” Colo. Rev. Stat. § 24-4.1-301 (emphasis added). 

Dr. Jonsson is not a law-enforcement agent, prosecutor, or judge. Likewise,

§ 24-4.1-303(1) states: “Law enforcement agencies, prosecutorial agencies,

judicial agencies, and correctional agencies shall ensure that victims of crimes are

afforded the rights described in section 24-4.1-302.5.” Again, no duty is imposed

on mental-health providers. 

In addition, the statute does not impose liability for damages on anyone:

The statute provides no damages remedy; and those on whom a duty is imposed

cannot be sued for damages. Judges, for example, are immune from suits for

damages. See State v. Mason, 724 P.2d 1289, 1290 (Colo. 1986). And the

Colorado Governmental Immunity Act protects the other officials who have duties

under the statute. See Colo. Rev. Stat. § 24-10-118(2)(a). Accordingly, we see

no reason to modify our interpretation of Section 117 based on the victim-rights

statute. 

2. Did Wellington “Communicate” to Dr. Jonsson a Serious

Threat of Imminent Physical Violence Against the

Plaintiffs?

The Plaintiffs argue that even if Section 117 applies, summary judgment

was nevertheless inappropriate. Under the statute, a mental-health professional

“shall not be held civilly liable for failure to predict [a patient’s] violent behavior,

Appellate Case: 09-1169 Document: 01018444796 Date Filed: 06/21/2010 Page: 18 
-19-

except where the patient has communicated to the mental health care provider a

serious threat of imminent physical violence against a specific person or persons.” 

Id. § 13-21-117 (emphasis added). Upon receiving such a communication, the

provider must “mak[e] reasonable and timely efforts to notify any person or

persons specifically threatened, as well as notify[] an appropriate law

enforcement agency or . . . tak[e] other appropriate action including, but not

limited to, hospitalizing the patient.” Id. The Plaintiffs contend that Wellington

communicated a threat and that Dr. Jonsson is therefore liable because it is

undisputed that she did not warn either the Plaintiffs or the probation department. 

The Plaintiffs do not say that there is any evidence that Wellington told

Dr. Jonsson that he intended imminent violence against them. They argue,

however, that Dr. Jonsson nevertheless had a duty to warn them because any

reasonable psychologist in her position would have known from Wellington’s

history that he posed a serious risk of violence to them. They assert that in

determining whether a threat was made, Dr. Jonsson ought to have looked to

Wellington’s four-year history of stalking the Plaintiffs, his felony stalking

conviction, his suicidal breakdowns, his past deviant sexual thoughts, and his

probation violations; and they add that Dr. Jonsson should have taken into

account the Columbine High School murder–suicides, and “other historical

pertinent medical and socio-historical data.” Aplt. Br. at 39. 

Appellate Case: 09-1169 Document: 01018444796 Date Filed: 06/21/2010 Page: 19 
-20-

We disagree with the standard articulated by the Plaintiffs. Section 117

requires that the threat be “communicated” to the mental-health provider. As

commonly understood, to communicate means “to make known; inform a person

of; convey the knowledge or information of.” Webster’s Third New International

Dictionary 460 (2002). A person “communicates a threat” when he expresses the

threat. The Plaintiffs would have us hold that Wellington “communicated to

[Dr. Jonsson] a serious threat of imminent physical violence” so long as the

information available to Dr. Jonsson (however she obtained it) would tell a

reasonably prudent psychologist that Wellington posed such a threat. But this

interpretation of communicate would contradict the statutory language that

mental-health providers “shall not be . . . liable for failure to predict [a patient’s]

violent behavior.” Colo. Rev. Stat. § 13-21-117. Under Plaintiffs’ reading, the

statute becomes internally inconsistent, stating that mental-health providers “shall

not be held civilly liable for failure to predict [a patient’s] violent behavior,

[except when they should be able to predict the violent behavior].” We reject this

nonsensical interpretation. 

A much more reasonable interpretation of the statute is that the mentalhealth provider has a duty to warn only when the patient himself predicts his

violent behavior (by communicating—that is, expressing—his threat to the

mental-health provider). 

Appellate Case: 09-1169 Document: 01018444796 Date Filed: 06/21/2010 Page: 20 
-21-

McCarty v. Kaiser Hill Co., 15 P.3d 1122 (Colo. Ct. App. 2000), on which

the Plaintiffs rely, is not to the contrary. McCarty told his psychologist “about a

problem he had had the previous day with his [work] supervisor, described his

strong negative feelings about his supervisors, and expressed concern that he

might not be able to control his anger.” Id. at 1125. He said that he was

“‘feeling sort of homicidal,’” and, when discussing his supervisor, that “he knew

martial arts and, if provoked, could kill someone.” Id. He further stated that

“they don’t deserve to die, they do deserve to have their ass kicked.” Id.

(alterations and internal quotation marks omitted). The psychologist concluded

that based on McCarty’s comments to him, he had a duty under Section 117 to

warn McCarty’s supervisors. He warned them, and McCarty was fired. See id. at

1124. 

McCarty sued his psychologist for professional negligence. See id.

McCarty contended that the psychologist was not protected by Section 117

because he (McCarty) had never communicated a serious threat of imminent

violence. The Colorado Court of Appeals disagreed, observing that McCarty’s

statements to the psychologist “were sufficient to demonstrate as a matter of law

that the psychologist had a duty to warn [McCarty’s] supervisors.” Id. at 1125.

McCarty is readily distinguishable from this case because Wellington,

unlike McCarty, did not tell his psychologist that he was dangerous. It is

undisputed that Wellington never told Dr. Jonsson that he presently intended to

Appellate Case: 09-1169 Document: 01018444796 Date Filed: 06/21/2010 Page: 21 
-22-

harm or threaten the Plaintiffs. He told her that he used to harbor violent

fantasies involving the Plaintiffs, but that he no longer harbored such fantasies.

Because the Plaintiffs have not pointed to any evidence that Wellington

communicated to Dr. Jonsson “a serious threat of imminent physical violence

against a specific person or persons,” Colo. Rev. Stat. § 13-21-117, Dr. Jonsson is

not subject to liability under Section 117 and summary judgment was appropriate. 

III. CONCLUSION

We AFFIRM the grant of summary judgment. We GRANT Dr. Jonsson’s

October 7, 2009, motion to file a sur-reply regarding certification and DENY the

Plaintiffs’ motion to certify to the Colorado Supreme Court the issues of state law

posed by this appeal. 

Appellate Case: 09-1169 Document: 01018444796 Date Filed: 06/21/2010 Page: 22