Provider Liability; Claims by Third Parties

Holloway v. State, 875 N.W.2d 435 (Neb. 2016)

Nebraska Supreme Court rules that state mental health service providers not liable for injuries to victim of a shooting by a mentally ill person released from prison upon completion of his sentence. [Editor’s Note: An 8 th Circuit case related to the same incident, Glasgow v. State, is covered in this issue of DMHL.]

Background: On July 20, 2013, Nikko Jenkins was released from prison after serving 10.5 years of his 21-year sentence. While in prison, Jenkins engaged in numerous violent activities and repeatedly exhibited signs of a serious mental health problem. On August 24, Jenkins shot Shamecka Holloway as she walked in her front yard in Omaha, Nebraska. As a result of the shooting, Holloway suffered permanent damage and incurred medical bills; she sued the State, the state department of corrections, and the company that provided mental health services for the department and several of its providers. In her complaint, Holloway stated that the State’s responsibilities with respect to the inmates included assessing and evaluating inmates in order to determine the need for mental health commitment, and providing adequate advance notice to members of the public regarding the release of a prisoner who threatened serious bodily harm to others. The complaint further alleged that Jenkins had told Baker and staff evaluators that he would hurt others upon his release. Thus, Holloway claimed that the State knew or should have known of the foreseeability of harm to her once Jenkins was released, and mental health care providers owed a duty to the citizens of Nebraska to correctly evaluate and treat all inmates. The district court dismissed all claims brought by Holloway. Holloway appealed.

Holding: On appeal, the Supreme Court of Nebraska held that the district court did not err in dismissing Holloway’s complaint. The court found that the State and its employees were entitled to immunity from suit because whether to seek commitment falls under the “discretionary function” exception to the State Tort Claims Act. Further, the Supreme Court of Nebraska affirmed the district court’s ruling that Holloway failed to plead sufficient facts to show that the mental health care provider was liable.

Notable Points:

A state actor’s performance or nonperformance of a discretionary function cannot be the basis of liability: The State Tort Claims Act (“Act”) contains a discretionary function exception to the waiver of sovereign immunity for certain claims. A two-step analysis is used to determine whether the discretionary function exception applies. The court must first consider whether the action is a matter of choice for the acting employee. Under the applicable statute of the Nebraska Mental Health Commitment Act, whether to communicate a belief that another person is believed to be mentally ill and dangerous is a matter of choice. Thus, the first step of the analysis was satisfied. The second step requires that when a statute involves an element of judgment, the judgment must be of the particular kind that the discretionary function exception was designed to protect. The court concluded that the decision as to whether to report to the county that another person is thought to be mentally ill is a policy decision that the legislature intended to shield from liability.

Mental health treatment providers are only liable for failing to warn of a patient's threatened behavior under certain exceptional circumstances: A psychologist or mental health practitioner is not liable for failing to warn of a patient’s threatened violent behavior unless the patient has threatened violence toward a reasonably identifiable victim. Here, Jenkins did not specify a particular person but rather threatened the “citizens of Nebraska.” Another source of liability could be founded on a custodial relationship, but the court concluded a custodial relationship did not exist because CCS was only contracted to provide medical services for inmates, not to exercise any kind of custody over inmates.

Found in DMHL Volume 35, Issue 2