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.

History

In the United States, two landmark legal cases established therapists' legal obligations to breach confidentiality if they believe a client poses a risk to himself or others. The first was Tarasoff v. Regents of the University of California (1976), where a therapist failed to inform a young woman and her parents of specific death threats made by a client. The other case was Jablonski by Pahls v. United States (1983), which further extended the responsibilities of duty to warn by including the review of previous records that might include a history of violent behavior.

Product liability

Main article: 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).^[1] 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.^[2]

Not long after launching its Note 7 smartphone in August 2016, Samsung got many reports of burning phones. Samsung had no choice other than recalling all the Galaxy Note 7, which had cost the company around $5.3bn.^[3] Following the recall, the Federal Aviation Administration prohibited people from turning Galaxy Note 7 on, packing it in the checked luggage, and charging it while on the plane.^[4] On October 11, 2016 Samsung stopped the production and issued a warning for people to turn the Galaxy Note 7 off and to not use it any longer. Samsung also told all of its global partners to stop selling the phone because of concerns about the product's safety.^[5] After testing 200,000 devices and 30,000 batteries, Samsung found that the overheating and the burning phones was resulted from the error in designing and manufacturing the batteries of its two suppliers.^[6]

An issue in product liability cases is whether the product warranted a duty to warn about known dangers.^[7]

In the popularized 1994 Liebeck v. McDonald's Restaurants case where the individual Liebeck sued McDonald's for damages for injuries due to spilling hot coffee on her lap. McDonald's was cited not to have properly warned consumers about the inherent danger of their coffee product, which was heated way beyond the average chain coffee's temperature .^[8] In addition, McDonald's was aware of previous injuries from hot coffee injuries and had not properly warned the consumers, which resulted in the court awarding Liebeck $640,000 in damages, which was later settled for an undisclosed amount.^[9]

Property ownership

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

Main article: Public liability

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.^[10][11]

Clinical psychology and psychiatry

See also: Involuntary commitment, Obligatory Dangerousness Criterion, and Duty to protect

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 themselves or others to warn the possible victims.^[12] 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 American Psychological Association'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."^[13] 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.^{[14][page needed]} 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.^[12] People who would be appropriate recipients of such information would include the intended victim and 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.^{[15][page needed][16]} The court held that mental health professionals have a duty to protect individuals who are being threatened with bodily harm by a patient. The original 1974 decision mandated warning the threatened individual, but a 1976 rehearing of the case by the California Supreme Court called for a "duty to protect" the intended victim.

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.^[16] Despite the value and importance of protecting the client and their 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.

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.^[16] 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.^[12]

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 a history of previous violent behavior, a predictor of potential future violence.

Recent^[when?] 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.^[12]

Construction

The existence and extent of a contractual duty to warn in construction cases is discussed in the England and Wales High Court (Technology and Construction Court) case of Cleightonhills v Bembridge Marine Ltd and Others (2012).^[17]

Criminal activity

Website users

In Jane Doe No. 14 v. Internet Brands, Inc., 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.^[18]

Potential targets of a serial rapist

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

In the early morning hours of August 24, 1986, a woman 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, this woman 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.^[19]

Jane Doe v. Royal Newfoundland Constabulary

In December 2012, a woman, who later became a Jane Doe plaintiff, was attacked by Sofyan Boalag in St. John's, Newfoundland. This assault 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 offenses 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.^[20][21]

College and university students

Main article: Clery Act

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.^[22]

Because her parents' efforts, the Clery Act was enacted which requires colleges and universities in the United States to publish campus crime reports.^[23]

In 2008, Eastern Michigan University was fined $357,500 for violating the Clery Act.^[24][25] 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.^[26]

U.S. Intelligence Community

In July 2015, then–Director of National Intelligence James Clapper formally issued a directive to the agencies of the United States Intelligence Community that they had a "duty to warn" both U.S. and non-U.S. persons of impending harm against them. The directive included exemptions for occasions that required the protection of sensitive "sources and methods," cases where the intended victim was a member of a terrorist group or a violent criminal, or if the intended victim was already aware of the threat. Many U.S. intelligence agencies had informally observed such a practice for decades before Clapper's directive.^[27]

In 2019, the Committee to Protect Journalists sued the Trump administration for information on whether the U.S. government had followed its "duty to warn" principle in the case of the murdered Saudi-American journalist Jamal Khashoggi.^[28] In August 2021, a U.S. appeals court ruled that U.S. intelligence agencies were not required to disclose whether they had information about threats to Khashoggi's life before his assassination.^[29]

Before the January 3, 2024, Kerman bombings, a terrorist attack carried out by ISIS-K suicide bombers that killed 94 people and injured 284 others, the U.S. intelligence community provided Iran, often considered an adversary of the U.S., with an early warning under its "duty to warn" policy. U.S. officials noted that the information given was sufficiently specific regarding the location and timely enough that it may have proved useful to Tehran in thwarting the attack.^[30]

In March 2024, the United States privately warned Russian officials of the danger of an impending attack from Islamic State – Khorasan Province (IS-KP or ISIS–K), from intelligence gathered earlier in March, under the US intelligence community's "duty to warn" requirement.^[31] Later that month the group would carry out the Crocus City Hall attack which killed 139 people.^[32]

See also

• Duty to protect – responsibility of a mental health professional to protect patients and others from foreseeable harmPages displaying wikidata descriptions as a fallback
• Goldwater rule – Rule governing how psychiatrists may give opinions on public figures

References

1. "Product Liability". Inc.com. 2020-04-10. Retrieved 2020-04-11.
2. "Product Liability Theories". www.justinian.com. Retrieved 2020-04-11.
3. "Samsung probe blames batteries for fires". BBC News. 2017-01-23. Retrieved 2020-04-12.
4. Jansen, Bart. "Samsung Galaxy Note 7 banned on all U.S. flights due to fire hazard". USA TODAY. Retrieved 2020-04-12.
5. "Samsung Will Ask All Global Partners to Stop Sales and Exchanges of Galaxy Note7 While Further Investigation Takes Place". Samsung. October 11, 2016. Retrieved 14 October 2016.
6. Moynihan, Tim (2017-01-23). "Samsung Finally Reveals Why the Note 7 Kept Exploding". Wired. ISSN 1059-1028. Retrieved 2020-04-12.
7. Gershonowitz, Aaron (1987-01-01). "The Strict Liability Duty To Warn". Washington and Lee Law Review. 44: 71–107 – via Washington and Lee.
8. "Liebeck v. McDonald's | The American Museum of Tort Law". 2016-06-13. Retrieved 2020-03-25.
9. Castillo, Joel González (2012). "Products Liability in Europe and the United States / Responsabilidad Por Productos Defectuosos en Europa y Estados Unidos". Revista Chilena de Derecho. 39 (2): 277–296. ISSN 0716-0747. JSTOR 41803513.
10. Fleming James Jr. (December 1953), "Tort Liability of Occupiers of Land: Duties Owed to Trespassers", Yale Law Journal, 63 (2), The Yale Law Journal Company, Inc.: 144–182, doi:10.2307/793464, JSTOR 793464
11. Schubert, Frank August (2014), "The law of torts", Introduction to Law and the Legal System (11th ed.), Cengage Learning, ISBN 9781305143029
12. Tribbensee, Nancy E.; Claiborn, Charles D. (2003). "Confidentiality in psychotherapy and related contexts". In O'Donohue, William T.; Ferguson, Kyle E. (eds.). Handbook of professional ethics for psychologists: issues, questions, and controversies. Thousand Oaks, CA: Sage Publications, Inc. pp. 287–300. ISBN 978-0-7619-1188-3. OCLC 50519066.
13. American Psychological Association (2016). "Ethical Principles of Psychologists and Code of Conduct: Including 2010 and 2016 Amendments". American Psychological Association. 4.05(b). Retrieved May 5, 2017.
14. Corey, Gerald Corey; Corey, Marianne Schneider; Callahan, Patrick (2007). Issues and Ethics in the Helping Professions (7th ed.). Belmont, CA: Brooks/Cole/Thomson Learning. ISBN 978-0-534-61443-0. OCLC 65465556.
15. Simon, Robert I. (2001). Concise Guide to Psychiatry and the Law for Clinicians. Concise guides (3rd ed.). Washington, DC: American Psychiatric Publishing. ISBN 978-1-58562-024-1. OCLC 45202323.
16. Everstine, Louis; Everstine, Diana Sullivan; Heymann, Gary M.; True, Reiko Homma; Frey, David H.; Johnson, Harold G.; Seiden, Richard H. (2003). "Privacy and confidentiality in psychotherapy". In Bersoff, Donald N. (ed.). Ethical conflicts in psychology (3rd ed.). Washington, DC: American Psychological Association. pp. 162–164. ISBN 978-1-59147-050-2. OCLC 51984809.
17. England and Wales High Court (Technology and Construction Court), Cleightonhills v Bembridge Marine Ltd & Ors (2012), EWHC 3449 (TCC) (05 December 2012), accessed 13 June 2021.
18. "Jane Doe No. 14 v Internet Brands" (PDF). United States Court of Appeals for the 9th Circuit. Retrieved 18 September 2016.
19. "Jane Doe v. Metropolitan Toronto (Municipality) Commissioners of Police [1998] 39 O.R. (3d) 487". CanLii.org. Ontario Court of Justice. July 3, 1998. Retrieved 12 October 2016.
20. "Survivor of St. John's sexual assault suing police and province for failing to warn public a predator was lurking". National Post. 2016-09-18. Retrieved 18 September 2016.
21. Glenn Payette; Lukas Wall. "Woman says Sofyan Boalag raped her 'for your pleasure and mine'". Canadian Broadcasting Corporation. Retrieved 18 September 2016.
22. "Our History - Clery Centre". Clery Center. Archived from the original on 23 February 2015. Retrieved 9 October 2016.
23. "20 U.S. Code § 1092 - Institutional and financial assistance information for students". (a)(1)(o): Cornell Law. Retrieved 9 October 2016.
24. Sara Lipka (January 11, 2008). "Education Dept. Imposes Largest Fine Yet for Campus Crime-Reporting Violation". The Chronicle of Higher Education. Retrieved 11 October 2016.
25. CS Staff (June 8, 2008). "Eastern Michigan University Agrees to Pay Largest Ever Clery Act Fine of $350,000". Campus Safety. Retrieved June 30, 2017.
26. Larcom, Geoff (2008-06-06). "Eastern Michigan University to pay $357,500 in federal fines over Laura Dickinson case". The Ann Arbor News. Retrieved 2008-08-01.
27. Aftergood, Steven (24 August 2015). "Intelligence Agencies Have a "Duty to Warn" Endangered Persons". Federation Of American Scientists. Retrieved 24 July 2022.
28. Ascher-Shapiro, Avi (2 October 2019). "Did the Trump Administration Warn Jamal Khashoggi He Was in Danger?". Lawfare. Retrieved 24 July 2022.
29. Castronuovo, Celine (27 August 2021). "Appeals court says intelligence agencies not required to confirm existence of Khashoggi records". The Hill. Retrieved 24 July 2022.
30. Gordon, Michael R.; Salama, Vivian; Strobel, Warren P. (2024-01-25). "U.S. Secretly Alerted Iran Ahead of Islamic State Terrorist Attack". The Wall Street Journal. Archived from the original on 2024-01-25. Retrieved 2024-03-29.
31. Barnes, Julian E.; Schmitt, Eric (22 March 2024). "U.S. Says ISIS Was Responsible for Deadly Moscow Concert Hall Attack". The New York Times. Archived from the original on 22 March 2024. Retrieved 22 March 2024.
32. "Продолжается расследование уголовного дела о теракте в концертном зале «Крокус Сити Холл»" [The criminal investigation into the terrorist attack in the Crocus City Hall concert hall continues] (in Russian). Investigative Committee of Russia. 2024-03-23. Archived from the original on 2024-03-23. Retrieved 2024-03-23.