Understanding State-Specific Duty to Warn Laws

What Are Duty to Warn Statutes?

Duty to warn laws are regulations that impose an obligation on individuals to inform authorities or potential victims about credible threats of harm. These laws are designed to limit risks to the public following disclosure of information about these threats. Duty to warn laws typically relate to a professional’s duty to maintain confidentiality of information concerning their patients, and they may apply to any individual in a "helping profession." Even though a duty to warn may be overruled by state laws regarding confidentiality, the presence of a credible threat may place a positive duty on someone to warn the potential victim.
The duty to warn is an exception to the general rule of confidentiality that applies to communications between a patient and doctor or other mental health professional. Other exceptions to the duty of confidentiality include when the patient consents to disclosures, when there is a duty to warn or report, when there is a court order for disclosure, and in the case of abuse or neglect (specifically in relation to children).
A duty to warn was put into play in the Tarasoff case. A graduate student, Theodor L. Tarasoff, was seeing a psychologist of the University of California, Berkeley, and told him that he was going to kill his ex-girlfriend , Tatiana Tarasoff. Even though the psychologist notified the campus police, he did not warn Tatiana, and Poddar ended up killing her in October 1968. The parents of the victim, Tatiana Tarasoff, ended up suing the therapist and the university police, and the California Supreme Court sided with the plaintiffs in determining that the psychologist had a duty to warn.
In 1976, the California legislature officially implemented the duty to warn. Since the beginning of the 1980s, other states began implementing the duty to warn. In addition to California, the states using the duty to warn laws include Alaska, California, Idaho, Illinois, Iowa, Kansas, Maine, Nevada, North Carolina, Ohio, Pennsylvania, Texas, and Washington.
The American Medical Association’s Code of Medical Ethics provides many opinions and guidelines on the duty to warn and more specifically on the Tarasoff case. The commentary following the opinions provides further background on the cases, what the AMA believes constitutes a threat, and the meaning of "duty to warn."
Duty to warn becomes an issue in different areas of law as well, from statutes on some degree of peer review privilege to the admissibility of evidence in certain types of cases and defenses.

State Variations in Duty to Warn Statutes

The duty to warn doctrine varies from state to state. Some states follow the Restatement of Torts, but others have more or less stringent requirements. Of the states that do follow the Restatement of Torts, some states adopt section 5, which holds that the duty extends only to users. Other states follow some variations of section 5, holding that the duty extends to users and reasonably anticipated bystanders. Still others don’t allow any recovery at all unless the injured party was a purchaser. For example, Iowa, under its Restatement Section 5 law, does not require a manufacturer to warn either of a user or some third party of foreseeable dangers. See Dunn v. Hain Co., 309 F.Supp.2d 1029, 1030 (S.D.Iowa 2004) (holding that Iowa does not adopt restatement section 5 because section 5 is a "sound rule of law in product liability cases." Iowa law therefore requires that, in order "to show that [the defendant] was negligent in failing to provide warnings, [plaintiffs] would have to show that [the defendant] breached a duty owed to them by failing to provide adequate warnings.") (citing Schmitz v. K-MART, 1999 Iowa Dist. LEXIS 952 (Iowa Dist. Ct. 1999)). Under Section 5, unlike most other states, Iowa law imposes a duty "only to users who are exposed to risk during the use of the product." Id. citing Schmitz, 1999 Iowa Dist. LEXIS 952 (Iowa Dist. Ct. 1999). Before deciding that to; the court had relied on Dunn v. Hain Co., 309 F.Supp.2d 1029 (S.D.Iowa 2004) (holding that under the products liability law of Iowa that was in effect when plaintiff suffered her injuries, the defendants were not required to warn the plaintiffs because the plaintiffs were not reasonably foreseeable users of the defendants’ product). As used in Dunn, the term "reasonably foreseeable user" was defined as "a purchaser or a secondary buyer of a product," while "non-purchaser bystanders" were deemed "not to be reasonably foreseeable users." Under Oregon law, on the other hand, in a design defect case a manufacturer can be held liable for the damages to non-users not just with respect to claimants involved in the initial sale, but also all downstream claimants. See Wilson v. Consolidated Freightways Corp., 74 Or. App. 1, 701 P.2d 835, rev. den. 301 Or. 140, 720 P.2d 733 (1985). Thus, under Oregon law it would be possible for all subsequent owners of the product to assert design defect claims for personal injury or wrongful death. In contrast, New Jersey law may require that the injured party "be either the purchaser or a person intended to be among the class of persons who would foreseeably use or purchase such product." See Cavanaugh v. Skil Corp., 103 N.J. 570 (1986). Another example of an atypical state duty to warn law is Georgia. Georgia does not have a common law cause of action for negligent undertaking. See Joseph v. J. Reagan & Sons, Inc., 981 F.Supp. 1445, 1451 (M.D.Ga. 1997). Under Georgia law, we simply look to the underlying negligence of the defendant. Under Georgia law, the question is whether the defendant breached a duty of care owed to any third parties. In other words, was there a common law duty of care? Under Florida law, a manufacturer will not be considered to have a duty to warn the user of a product about dangers that cannot arise unless someone else has already failed to warn him or her. See McConnell v. Caterpillar, Inc., 474 So.2d 974, 976 (Fla.Dist.Ct.App. 1985) ("An important policy consideration involved in any products liability case is whether a manufacturer or seller should be held in a chain of distribution for its alleged failure to warn consumers of dangers connected with the use of its product." Idaho does not allow recovery for duty to warn where the person using the product expects that the government will warn him if the product is unsafe. See Durgin v. Christine, 98 P.2d 1358, 1363 (Idaho 1999) (holding that there is no duty to warn the public or employees "of the potential consequences of operating a dangerous product where the defendant reasonably expects or foresees that warnings will be provided by the government.").

Influential Court Cases Impacting State Laws

Several key legal cases from across the United States have had a notable impact on how different states enforce and interpret their duty to warn laws. In California, Tarasoff v. Regents of the University of California set the precedent when the state supreme court ruled on the liability of a psychologist after such a patient was killed by his ex-girlfriend after his treatment session. Similarly, in Montana, the case of Henry J. Smith v. Collin McGregor triggered duty to warn laws. In this case the couple of sought a restraining order after receiving written notices from the plaintiff’s wife that he had threatened to kill them both on three separate occasions. Following several incidents involving police and his wife the defendant could be found guilty of harassment, but was still able to access firearms.
While many other states initially did not recognize the Tarasoff v. Regents precedent, they were later recognized as the ruling state courts applied the same rationale set out California, and imposed on therapists a duty to warn third parties or law enforcement of threats posed by their clients. Two notable examples can be found in Illinois’s McGowan v. Vetlesen case and in Nevada’s Mundy v. McClung case. The District Court in Nevada recognized the statute set out in California and expanded it to include a circumstance where a person becomes aware of an individual that he or she knew presented a credible threat of harm to a third party.
As mentioned previously there are currently 19 states which impose mandatory reporting obligations that extend beyond those covered by Tarasoff v. Regents of the University of California.

Difficulty Enforcing the Sentences

Difficulties in Enforcing Different Duty to Warn Laws
One of the most significant challenges faced by courts is with interpreting ambiguous language in the different duty to warn laws across the various states. For instance, while some states may require disclosure of a mental health professional if a patient makes a "serious threat" against an identifiable victim, other jurisdictions require a "substantiated threat," or a "specific" threat. The differences between some of the state laws regarding what constitutes a reportable event also places a burden on the courts.
Some states allow for a civil lawsuit against a mental health professional. While some of those lawsuits have been dismissed for lack of a duty, it is worth noting that other states have held that plaintiffs can sue when the duty to warn statute has not been adhered to . In addition to these difficult issues presented by various state laws, there is the fundamental issue of jurisdiction. Because the laws vary from state to state, the question of what law should apply and what court should hear the case is a difficult one.
Likewise, the issue of protecting the confidentiality of the therapist/patient relationship vs. public safety has led to varied legal interpretations, complicating the issue further. Some courts have determined that confidentiality is more important than public safety, while others have held that identifying a threat of serious harm to identifiable victims under certain circumstances justifies breaching the confidentiality privilege. However, as noted above, no two states have the same language in their duty to warn statutes, so there is no universal answer to whether, and under what circumstances, confidential patient information must be disclosed.

Professional and Organizational Implications

There are many professionals and organizations that are expected to comply with a duty to warn laws. This includes psychiatrists and therapists. These mental health practitioners are often the first defense against people who pose a danger to themselves or others. They have a duty under various laws to warn when they learn of a concrete and credible threat of harm that has been made to another specific person.
However, they do not have to breach the confidentiality privilege unless that person has threatened a violent crime. And they can only disclose information to the necessary extent to best manage the threat.
When police officers are notified of threats, they also have a duty to warn. It has been ruled that police have a duty to warn that is for the purpose of their enforcement, such as arresting someone in a violent state, or to protect someone. It is not their responsibility to contact potential victims of a threat in most cases.
The schools also play a role if there is a threat made. They are expected to warn and inform teachers, students and parents if there is a risk of a threat made in the school. Additionally, if there is a student who is suspected of being potentially dangerous, warnings are to be given to his classmates and their parents.
Manufacturers, too, have responsibilities under duty to warn laws. When there is a foreseeable risk of harm using a product, he must provide adequate warning.

Legislative Trends and Future Changes

As such, rigorous trend analysis of potential duty to warn law changes is a necessity. Legal stakeholders will benefit from the comprehensive understanding of future trends and the potential for relevant legislation. While comparative studies of state and federal law often dominate the analysis of duty to warn, prospective investigations into the future are equally important. With the emergence of new technologies, duty to warn laws will have to adapt to the future of medicine. Developing fields, such as bioethics, genomic research and digital medicine, are changing the structure of the medical field, with new avenues for legal examination . The proliferation of information accessibility and accuracy online, particularly in the realm of social media, may understandably lead to concern, not only for healthcare providers but also those who rely on the comprehensive networking of information online. The manner in which information is disseminated is ever changing, requiring that duty to warn laws keep pace. For example, the use of genetic testing within insurance underwriting is becoming more common within the insurance industry, which raises the question of how duty to warn laws will adapt to the privacy needs of genetic data. As this field continues to progress, many predict that legislation will be necessary to regulate the common use of genetic information.