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Gregory v. Kilbride6/18/2002
r standard of care with respect to the issue of failure to warn.
As to the standard necessary to prove liability of a doctor to one whom he fails to involuntarily commit, physician-patient privity notwithstanding, neither Davis nor Pangburn address the applicable standard. Therefore, we conclude that Davis and Pangburn do not bar expert testimony of a medical negligence standard of care in this wrongful death action involving the patient-decedent based on failure to involuntarily commit.
Having concluded that neither Davis nor Pangburn bar expert testimony of the standard of care, we hold the trial court did not err in allowing expert testimony and in instructing the jury on same. Moreover, because plaintiff alleged a medical negligence standard of care and presented trial testimony regarding that standard we cannot hold the court's requirement that plaintiff prove breach under these circumstances to be in error. This assignment of error is overruled.
II.
Plaintiff's next argument is that the trial court erred by granting Dr. Kilbride's motion for directed verdict on plaintiff's claim alleging breach of a duty to warn.
A motion for a directed verdict tests the legal sufficiency of the evidence to take the case to the jury. West v. King's Dept. Store, Inc., 321 N.C. 698, 701, 365 S.E.2d 621, 623 (1988). In ruling upon the motion, the evidence is viewed in the light most favorable to the nonmoving party, who is to be given the benefit of every reasonable inference which may be drawn from it. Manganello v. Permastone, Inc., 291 N.C. 666, 670, 231 S.E.2d 678, 680 (1977). Appellate review of an order granting a directed verdict is limited to the grounds asserted by the moving party at the trial level. Crane v. Caldwell, 113 N.C. App. 362, 438 S.E.2d 449 (1994).
The landmark case, Tarasoff v. Regents of University of California, 551 P.2d 334 (Cal. 1976), held that when a psychiatrist determines, or should have determined, that the patient presents a danger to another, he has a duty to warn the intended victim. Id. at 340. In the present case, plaintiff mistakenly relies on Pangburn, Davis and King v. Durham County Mental Health Authority, 113 N.C. App. 341, 439 S.E.2d 771 (1994), to support his argument that North Carolina recognizes this "Tarasoff" duty to warn. The cases cited by plaintiff address a "duty . . . to exercise control over the patient `with such reasonable care as to prevent harm to others at the hands of the patient,'" Davis, 121 N.C. App. at 112, 465 S.E.2d at 7 (quoting Pangburn, 73 N.C. App. at 338, 326 S.E.2d at 367), and not a duty to warn. See King, 113 N.C. App. at 345-46, 439 S.E.2d at 774. Thus, unlike the holding in Tarasoff, North Carolina does not recognize a psychiatrist's duty to warn third persons. Therefore, we find no error by the trial court in granting a directed verdict for Dr. Kilbride regarding this issue.
III.
Plaintiff's next argument is that the trial court erred by finding that N.C.G.S. ยง 122C-263 is not a public safety statute. We disagree.
Our Supreme Court has held that when a statute imposes a duty on a person for the protection of others, it is a public safety statute and a violation of such a statute is negligence per se. McEwen Funeral Service v. Charlotte Coach Lines, 248 N.C. 146, 102 S.E.2d 816 (1958); Lutz Industries, Inc. v. Dixie Home Stores, 242 N.C. 332, 88 S.E.2d 333 (1955). A court may determine that a statute creates a minimum standard of care required to avoid liability for negligence. Nevertheless, "not every statute purporting to have generalized safety implications may be interpreted to automatically result in tort liability for its violatio
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