Duty to warn

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

Product liability

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

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

Samsung issued a warning with respect to its Galaxy Note 7 smart phone because of concerns about the product's safety. ^[1]

Property ownership

Warning signs such as those depicted in those image are often used to warn property visitors of potential hazards.

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

Clinical psychology

In clinical psychological practice in the United States, duty to warn requires a clinician who has reasonable grounds to believe that a client may be in imminent danger of harming himself or others to warn the possible victims.^[2] Duty to warn is among the few exceptions to a client’s right to confidentiality and the therapist’s ethical obligation to maintain confidential information related in the context of the therapeutic relationship. In the APA's Ethical Principles of Psychologists and Code of Conduct, the therapist’s duty to warn is implicitly contained within the guidelines for disclosure of confidential information without the consent of the client: “Psychologists disclose confidential information without the consent of the individual only as mandated by law, or where permitted by law for a valid purpose such as to . . . protect the client/patient, psychologist, or others from harm.”^[3] In situations when there is cause for serious concern about a client harming someone, the clinician must breach confidentiality to warn the identified victim/third party about imminent danger.^[4] Although laws vary somewhat in different states, in general, the danger must be imminent and the breach of confidentiality should be made to someone who is in a position to reduce the risk of the danger.^[2] People who would be appropriate recipients of such information would include the intended victim and the law enforcement.

Duty to warn is embedded in the historical context of two rulings (1974 and 1976) of the California Supreme Court in the case of Tarasoff v. Regents of the University of California.^[5][6] The legal case was brought by the Tarasoff family after their daughter, Tatiana Tarasoff, was murdered by Prosenjit Poddar, who had received psychological services in the university counseling center. Poddar had made it known to his psychologist, during a session, that he wanted to kill Tarasoff, and his psychologist informed the campus police, following the session, of the danger that Poddar posed to himself and others and suggested that hospitalization might be necessary. The psychologist also wrote a letter requesting assistance to the chief of campus police. Upon investigation by the police, during which Poddar was briefly detained for questioning, he was released because his mental state seemed to be stable and rational. Shortly thereafter, the director of the department of psychiatry at Cowell Hospital, asked for the police to return the letter and ordered that Poddar’s therapy notes should be destroyed. No one ever warned Tatiana Tarasoff. Poddar killed Tatiana Tarasoff on October 27, 1969, and her parents filed suit against several of the organizations and individuals who had been involved. The case was initially dismissed by a lower court, but her parents appealed to the California Supreme Court, which upheld the appeal in 1974 and reaffirmed the ruling in 1976. The case was settled out of court when Ms. Tarasoff’s parents received a substantial sum of money.

Explicit in the court’s decision was the principle that the confidentiality of the therapeutic relationship is subordinate to the safety of society and its members.^[6] Despite the value and importance of protecting the client('s feelings), and thus the physician-client relationship, the court decided that the clinician’s duty to society as a citizen of that society places certain limitations on the clinician’s loyalty to a client’s secrets, divulged in the context of the therapeutic relationship.

Some have decried the court’s decision as a limitation of the foundation for the therapeutic relationship and progress, the client’s expectation of confidentiality. Max Siegel, a former president of the APA, defended the therapist’s right to confidentiality as sacrosanct, under any circumstances.^[7] Furthermore, he suggested that had Poddar’s psychologist maintained confidentiality, instead of alerting the police, Poddar might have remained in counseling and Ms. Tarasoff’s death averted through Poddar’s psychological treatment. Limitations to confidentiality are a critical concern for clinicians, because a relationship of trust between the therapist and client is the prerequisite context for therapeutic growth.^[6] Without the client’s expectation that the therapist will honor the client’s confidences divulged in the therapeutic dialogue, the client will not have the freedom to unveil the most troublesome and private issues that are matters of the utmost concern and need for intervention. Some argue that if clients cannot depend on confidentiality in all matters that are related in therapy, potentially dangerous clients, who may be most in need of psychological services, will avoid therapy, thus missing the opportunity for intervention.^[2] Other cases, similar to the issues addressed in the Tarasoff case have been brought to the attention of the courts, such as the Jablonski by Pahls v. United States. The conclusion of that case extended the responsibility entailed in the duty to warn with the judgment that the clinician may be liable for failure to review previous records, which may contain history of previous violent behavior, a predictor of potential future violence. If a trend of restrictions on confidentiality develops in legislation, some argue that the ability of therapists and counselors to effectively practice and facilitate clients’ growth may be significantly impaired.

Recent consideration of applying the duty to warn has raised questions regarding therapists’ responsibility to breach confidentiality in order to report clients’ nonviolent behaviors which may pose danger to others, as in the case of clients with HIV/AIDS.^[2] Clients with HIV/AIDS who are sexually promiscuous or share needles may pose risks to their companions, who may be unaware of the client’s health condition. Although the possibility of infection that may result is a factor of concern, the duty to warn currently does not prescribe breaking confidentiality in these cases. In such cases there may be uncertainty regarding potential victims and, perhaps, ignorance about the occurrence of behaviors that would pose the danger of transmission. Furthermore, many states prohibit the disclosure of information about HIV/AIDS.

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

Criminal activity

Website users

The Jane Doe plaintiff alleged that Internet Brands, Inc.’s failure to warn users of its networking website, modelmayhem.com, caused her to be a victim of a rape scheme. She alleged that Defendant Internet Brands knew about the rapists but did not warn her or the website’s other users. She filed an action against Internet Brands alleging liability for negligence under California law based on that failure to warn. On May 31, 2016, the US Court of Appeals for the 9th Circuit ruled that the Communications Decency Act does not bar Jane Doe’s failure to warn claim.^[8]

Potential targets of serial rapist

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

In the early morning hours of August 24, 1986, the plaintiff, who lived in a second-floor apartment in Toronto, was raped at knifepoint by Paul Callow, who had broken into her apartment from a balcony. At the time, the plaintiff was the fifth victim of similar crimes by Callow, who would become known as the "balcony rapist".

In 1998, the plaintiff was successful in her lawsuit against the Metropolitan Toronto Police Force for damages on the grounds that the police force had conducted a negligent investigation and failed to warn women of the risk of an attack by Callow.^[9]

Jane Doe v. Royal Newfoundland Constabulary

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

In January 2016, Doe commenced a lawsuit against the Royal Newfoundland Constabulary alleging police failed to properly warn the public that a predator was stalking young women. According to the statement of claim, all of the attacks took place in a similar part of the city and involved people with similar characteristics — six young women including one girl under 16 years of age.^[10][11]

College and university students

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

• the lack of information provided to students and families about the rapid increase of violent and non-violent incidents on campuses
• the failure of university administrators to warn students and the public ^[12]

Because her parents' efforts, the Clery Act was enacted which requires colleges and universities in the United States to publish campus crime reports.^[13]

Eastern Michigan University was fined $357,500 for violating the Clery Act.^[14] US federal officials cited the university for "an egregious violation" for failing to notify the public of the murder of Laura Dickinson in her residence hall room.^[15]

Drivers travelling through 'smash and grab' hot spots

The South African Police Service and community groups publish the locations which are prone to "smash and grab" crimes. At these "hot spots", criminals smash through car windows to grab valuables while vehicles are stationary at traffic lights or stuck in slow moving traffic. ^[16]

See also

• Duty to protect
• Paul Callow
• Jane Doe No. 14 v. Internet Brands, Inc.
• Clery Act

References