Schmidt, Sethi & Akmajian Blog

Torts: Duty to Third Parties to Warn of Risk of Future Harm/Child Abuse

Posted by Ted A. Schmidt | Oct 26, 2023 | 0 Comments

Avita v. Crisis Preparation & Recovery, Inc., No CV-22-0288-PR (October 16, 2023) (J. Bolick)


Samuel Avitia brought this wrongful death action against The State, Pima County, healthcare providers and Crisis Preparation and Recovery [CPR] alleging a statutory and common law duty to warn of abuse, neglect and endangerment of his infant twins. 

Avitia had a twin children with ML who suffered a mental illness. ML and Avita never married. They shared custody of the twins. ML was taken to a crisis center and ultimately the emergency room where a CPR licensed professional counselor interviewed her and determined she was not safe to be discharged to care for herself or her children. The counselor also obtained a court ordered evaluation and treatment. Ultimately the court ordered she receive inpatient and outpatient treatment which she did. Subsequently she drowned her children in the bathtub. She was convicted of first degree murder, except insane and committed to the Arizona State Hospital.

The superior court granted CPR's motion for summary judgement finding CPR did not owe Avita a duty to report potential future harm to his children. Avita appealed. The Arizona Court of Appeals affirmed. The Arizona Supreme Court affirmed the trial court and vacated the court of appeals decision.

The Arizona Supreme Court held:

We hold that the statutory duty to report child abuse or neglect

under A.R.S. § 13-3620(A) does not encompass reporting a risk

of future harm. We also hold that mental health professionals

owe a duty to third parties based not on foreseeability of

harm, but on their special relationship and public policy. Because

prior judicial decisions found a duty in such circumstances based on

foreseeability, see Hamman v. County of Maricopa, 161 Ariz. 58

(1989) and Little v. All Phoenix South Community Mental Health

Center, 186 Ariz. 97 (App. 1996), we overrule those decisions.

A.R.S. § 13-3620(A) only requires reporting when it is reasonably believed  a minor “is or has been” a victim.  There was no evidence of neglect or abuse by ML prior to her encounters with CPR. No duty exists under the statute to report potential future harm.

Regarding common law duty, A.R.S. § 36-531 creates a statutory duty on CPR to seek a court ordered involuntary treatment evaluation. CPR met that duty.  No other public policy or special relationship nexus was established here so the trial court properly found no statutory or common law duty and correctly granted summary judgment.  

About the Author

Ted A. Schmidt

Ted's early career as a trial attorney began on the other side of the fence, in the offices of a major insurance defense firm. It was there that Ted acquired the experience, the skills and the special insight into defense strategy that have served him so well in the field of personal injury law. Notable among his successful verdicts was the landmark Sparks vs. Republic National Life Insurance Company case, a $4.5 million award to Ted's client. To this day, it is the defining case for insurance bad faith, and yet it is only one of several other multi-million dollar jury judgments won by Ted during his career. He is certified by the State Bar of Arizona as a specialist in "wrongful death and bodily injury litigation".


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