COMMON LAW PRECEDENT AND
STATUTORY RESPONSES PRIOR TO VOLK
A staple of law school torts discussions, the groundbreaking Tarasoff decisions by the California Supreme Court
in the mid-1970s imposed an expansive
duty on therapists to protect foreseeable victims from outpatient violence. 6
The Volk duty originates from Tarasoff
and a reliance on the “special relationship” test set forth in Section 315
of the Restatement (Second) of Torts,
which triggers liability for the negligent
failure to protect endangered third
parties. Despite Tarasoff’s influence
as common law precedent, however,
the California legislature responded to
judicial concerns and criticisms by the
mental health community to narrow
the duty of “psychotherapists” to warn
only “reasonably identifiable victims” of
patient danger. 7
Following a similar path, the Washington Supreme Court adopted Tarasoff
and the Section 315 duty in a personal
injury case involving gross negligence
by Western State Hospital in discharging a dangerous patient. In the 1983
Petersen v. State of Washington decision, the Washington Supreme Court
held that the hospital had an expansive
duty to protect anyone foreseeably
endangered by the patient. 8 Petersen
generated a four-year reform movement
that resulted in the Washington legislature’s 1987 narrowing of the duty under
current RCW 71.05.120( 3).
As noted in the Volk Study, the pattern of an expansive common law duty
being refined by state legislatures or
in subsequent cases has repeated itself
in many surveyed jurisdictions. The
Volk majority upheld a “[Section] 315
Petersen duty,” but did not weigh RCW
71.05.120, which the Court of Appeals
had held inapplicable to outpatient
settings because the statute amended
the Involuntary Treatment Act (ITA)
regarding civil commitment. Instead,
the Supreme Court’s Volk decision
relied heavily on Petersen and the Ohio
Supreme Court’s common law and pub-
lic safety analyses in Estates of Morgan
v. Fairfield Family Counseling Ctr., 77
Ohio St. 3d 284 (1997). As discussed
below, however, the Volk majority
failed to discuss the Ohio legislature’s
subsequent enactment of a narrowed
statutory duty to protect third parties.
THE VOLK DUT Y FOR OUTPATIENT
THERAPISTS
The Supreme Court in Volk held
that outpatient treatment creates a
“special relationship” giving rise to the
therapist’s duty of reasonable care to
act within the standards of the mental
health profession to protect foreseeable
third parties from harm. The therapist
must employ variable means to protect
“foreseeable victims”—victims a fact
finder would determine in any subse-
quent lawsuit—from a patient’s “danger-
ous propensities.”
The patient who shares danger-
ous-sounding feelings or thoughts in
treatment risks required disclosure by
the therapist to protect third parties
such as employers, family, former inti-
mate partners, and friends, even in the
absence of an actual threat of imminent
harm against an identifiable person.
The therapist also may be required
to disclose the patient’s feelings and
thoughts to police, initiate civil commitment proceedings, or pursue other
unspecified means.
For therapists, the expansive Volk
duty implies expansive tort liability,
absent the ability to foresee a patient’s
future violence. State legislation intro-
duced in 2017, however, would narrow
the duty to a warning to identifiable
third parties of actual threats by the
patient of imminent physical harm.
At the same time, the 20-year-old ITA
amendment intended to narrow the
Petersen duty to protect may, after Volk,
incongruously impose a less stringent
“duty to warn” (identifiable victims of
actual threats) in inpatient settings
where a therapist has greater control.
The Volk duty also implies thera-
pists should provide equally expansive
informed consent, which may deter
prospective outpatients from entering
treatment. An intake form might warn
that the therapist will disclose to third
parties, including employers or family,
any feelings or thoughts expressed
by the outpatient of harm to others or
self-harm, even in the absence of a plan
or threat. The form also might warn
that statements construed as threats
are subject to police reporting and
the outpatient’s arrest, prosecution,
and criminal punishment. Under such
circumstances, public safety gains from
a therapist’s warnings to third parties
necessarily deprioritize the privacy
rights and the autonomy of those with
mental illness, who may weigh related
concerns in deciding whether to pro-
ceed with outpatient treatment.
Anticipating such issues, the 2014
Volk decision by the Court of Appeals
acknowledged the “humbling and
daunting task of demarcating the duty
a mental health professional owed to
third parties to protect them from the
violent behavior of the professional’s
outpatient client.” 9 The importance of
legislative oversight was acknowledged:
“The parties, the mental health profes-
sion, and the residents of Washington
state would be better served by the
The therapist must employ variable means
to protect "foreseeable victims"
from a patient's "dangerous propensities"
