Halfway houses and mental health treatment facilities - establishing duty in tort.

Drug and alcohol recovery, (1) and treatment for chronic mental health issues, many times involve a stay in some form of residential facility. (2) Some of these facilities are pure halfway houses, and provide the individual with only. a bed and access to support groups. (3) Others, such as the well-known Betty Ford Centers, involve complex forms of therapy at a significant cost. (4) Many other hybrid forms of residential facilities exist with some form of treatment being provided for the resident. Do these facilities have a duty in tort such that a claim lies in the event of either a resident's self-inflicted injury or in the event of a resident's infliction of injury to third parties? This article examines the various theories of liabilities in such circumstances and concludes that in most cases a jury question is involved. (5)

In attempting to establish liability, the practitioner must first examine the circumstances as to when mental health providers are not liable under extant law. At least one Florida court has held that a treating mental health provider has no duty to involuntarily hospitalize a patient such that if a patient who is being seen on an outpatient basis attempts suicide the psychiatrist is not liable. (6) A Florida court has also affirmed a trial court's dismissal of a medical malpractice claim brought by injured persons against a mental health center when a person the center treated on an outpatient basis shot and injured two persons. (7) Thus, the examination of these cases begs the question of whether the mere fact of residency in a facility is sufficient to establish a duty of care.

Not surprisingly, at least two Florida courts have held that mere residency is not enough. In Lighthouse Mission of Orlando v. McGowen, 683 So. 2d 1086 (Fla. 5th DCA 1996), the appellate court reversed a plaintiff's judgment against a residential facility obtained after one of its residents with a history of sexual crimes raped and murdered a neighbor of the mission. The appellate court ruled that no duty of care existed as the mission had only a landlord/tenant relationship with the resident who "could leave at will." The critical facts obtained during discovery in McGowen was that the resident in McGowen had "no restraints on his liberty ... [and] lived at the [m]ission as a tenant." (8) The case apparently turned on the factual predicate of the total absence of control.

Similarly, in Metro Dade County v. Dubon, 780 So. 2d 328 (Fla. 3d DCA 2001), a homeless shelter was found not to have liability to the plaintiff who had been stabbed by another resident while residing at the shelter. Although the shelter did have rules and regulations to maintain order (which are not stated in the opinion), the residents at the shelter "were free to come and go as they pleased." Like McGowen, the plaintiff failed to establish that the shelter had any control over the resident.

The plaintiff must, therefore, be mindful of this case law and seek to sufficiently discover facts that trigger the applicable tort principles relative to liability. It is also important to query whether the above-referenced cases sufficiently examine the underpinning tort principles involved. As stated by the Florida Supreme Court, the "minimal threshold legal requirement" to bring an action for negligence in Florida requires that defendant's alleged actions "created a foreseeable 'zone of risk' in harming others." Kitchen v. K-Mart …