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Florida Fourth DCA affirms dismissal of complaint against mental health treatment facility brought by family of victim killed in in Marjory Stoneman Douglas High School shooting

On May 27, 2020, in Pollack v. Cruz, et al. No. 4D19-1512, the Florida Fourth DCA ruled in a lawsuit arising out of the tragic shooting at Marjory Stoneman Douglas High School in 2018. The parents of the one of the students killed in the shooting sued the appellant, Henderson Behavioral Health, Inc., along with other defendants. Henderson had provided periodic services to the shooter for his anger issues at home and school, ending in December 2016 when the shooter turned 18 and indicated he was not willing to continue counseling. The plaintiff claimed that Henderson was negligent for failing to prevent the shooter from being mainstreamed into the public school system and failing to warn of the shooter’s dangerous propensities. The trial court dismissed the complaint against Henderson based on Henderson’s argument that a mental health provider has no legal duty to warn or protect others from the future possible harm that might be caused by a voluntary outpatient, especially when the patient has long since discontinued his care with the mental health provider. On appeal, the Fourth DCA noted that the crucial inquiry was whether “the defendant’s conduct foreseeably create[s] a broader ‘zone of risk’ that poses a general threat of harm to others,” quoting from McCain v. Fla. Power Corp., 593 So. 2d 500, 502 (Fla. 1992). The Fourth DCA concluded that the plaintiff’s complaint against Henderson was undermined by Florida law establishing that a criminal attack on third parties by an outpatient mental health patient is not within the foreseeable zone of risk created by the mental health provider. The Court cited Mental Health Care, Inc. v. Stuart, 909 So. 2d 371, 374 (Fla. 2d DCA 2005), Boynton v. Burglass, 590 So. 2d 446, 450 (Fla. 3d DCA 1991), Green v. Ross, 691 So. 2d 542, 542 (Fla. 2d DCA 1997) and Tuten v. Fariborzian, 84 So. 3d 1063, 1068 (Fla. 1st DCA 2012). The plaintiff maintained that Henderson could still be found pursuant to the “undertaker’s doctrine”, codified by Restatement (Second) of Tort Section 324A Clay and adopted by the Florida Supreme Court in Elec. Co-op., Inc. v. Johnson, 873 So. 2d 1182 (Fla. 2003). However, the Fourth DCA concluded that even if Henderson played a “key role” in the decision to mainstream the shooter by consulting with the School Board and making a recommendation, that conduct did not give rise to a duty to protect the administration, teachers, and students at the high school from harm, especially when the decision to mainstream the shooter was ultimately up to the School Board, not Henderson.