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Ryder v. Mitchell9/16/2002
rty a duty of care. In Montoya v. Bebensee, 761 P.2d 285, 286 (Colo. App. 1988), the mother of a child retained a psychologist for purposes of rendering an opinion about whether the father of the child had sexually abused her. An unlicensed associate of the psychologist concluded without administering any psychological testing and based solely on the child's body language, that the father of the child had indeed sexually abused his daughter. Id. at 287. Based on this determination, the associate instructed the child's mother to limit the father's interaction with the children to one hour per week, in direct violation of court orders.
Additionally, she reported her conclusion to a social worker who had previously investigated the case and concluded that there was no basis to suspect the father of abuse. The social worker informed the associate of her prior conclusion, but the associate nevertheless filed a report of suspected child abuse with the county. Id. Further, upon receiving a second opinion from another psychologist who had serious doubts regarding the alleged sexual abuse, the associate dismissed the opposing opinion as "irrelevant" and "not helpful," and subsequently testified for the mother that the father had indeed sexually abused the child. Id.
Based on these circumstances, after considering both the "great social utility of having therapists make reports of suspected child abuse and the significant risk of substantial injury that may occur to one who is falsely accused of being a child abuser," the court of appeals concluded that the associate owed a duty to the father in this case. Id. at 288. It stated, "a mental health care provider owes a duty to any person, who is the subject of any public report or other adverse recommendation by that provider, to use due care in formulating any opinion upon which such a report or recommendation is based." Id. at 289.
The court of appeals revisited the issue most recently in Card v. Blakeslee, 937 P.2d 846, 847 (Colo. App. 1996). In that case, the plaintiff alleged that, during therapy with the defendant, the plaintiff's adult daughter experienced false memories of physical and sexual abuse by the plaintiff. Id. at 848. The plaintiff complained that the defendant had published a letter authored by the daughter accusing the plaintiff and others of past abuse; and that the defendant had written and published a second letter recommending that the daughter have no further contact with her family at that time. Id. In addressing the plaintiff's negligent infliction of emotional distress claim, the court of appeals distinguished Montoya on the basis that the defendant did not render any opinion accusing the plaintiff of abuse. Id. at 850. It further determined that the defendant did not publish "a public report or recommendation accusing plaintiff of abuse as those terms were used in Montoya." Id. Thus, the court held that the plaintiff had failed to prove the existence of a duty as described in Montoya. Id.
C.
Thus, we find ourselves in the following factual and legal circumstance. There is no evidence in the record to support a conclusion that the plaintiff was Ryder's patient. Rather, the children were Ryder's patients, and as such, Ryder owes them a duty of care, and they have rights to pursue causes of action against her for negligence or otherwise. The plaintiff was a third-party to the patient/therapist relationship, and we must now determine whether Ryder owed her a duty of care as well. As we noted in Martinez v. Lewis, 969 P.2d 213, 218 (Colo. 1998), in analyzing the legal question of whether a duty exists, there are various factors that come into play. A court must examine the risk involved, the for
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