{ "id": 11915701, "name": "HAROLD DAVIS, Administrator of the Estate of Phillip Davis, Plaintiff v. NORTH CAROLINA DEPARTMENT OF HUMAN RESOURCES, Defendant", "name_abbreviation": "Davis v. North Carolina Department of Human Resources", "decision_date": "1995-12-19", "docket_number": "No. COA95-190", "first_page": "105", "last_page": "116", "citations": [ { "type": "official", "cite": "121 N.C. App. 105" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "98 S.E. 532", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1919, "pin_cites": [ { "page": "534", "parenthetical": "\"usually the [intervening] act must be in itself negligent, or at least culpable\"" } ], "opinion_index": 0 }, { "cite": "177 N.C. 213", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654085 ], "year": 1919, "pin_cites": [ { "page": "216", "parenthetical": "\"usually the [intervening] act must be in itself negligent, or at least culpable\"" } ], "opinion_index": 0, "case_paths": [ "/nc/177/0213-01" ] }, { "cite": "162 S.E.2d 481", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "483-84" } ], "opinion_index": 0 }, { "cite": "274 N.C. 256", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559737 ], "year": 1968, "pin_cites": [ { "page": "260" } ], "opinion_index": 0, "case_paths": [ "/nc/274/0256-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 122-58.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(l)" }, { "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "463 S.E.2d 425", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "427" }, { "page": "427" } ], "opinion_index": 0 }, { "cite": "120 N.C. App. 602", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916972 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "605" }, { "page": "605" } ], "opinion_index": 0, "case_paths": [ "/nc-app/120/0602-01" ] }, { "cite": "511 F.2d 407", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 153102, 3689455 ], "year": 1975, "pin_cites": [ { "page": "415", "parenthetical": "public mental hospital owed duty to court to provide report as to defendant's ability to stand trial and also to a subsequent victim of defendant" } ], "opinion_index": 0, "case_paths": [ "/f2d/511/0407-01", "/us-app-dc/167/0169-01" ] }, { "cite": "296 S.E.2d 693", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "696-97" } ], "opinion_index": 0 }, { "cite": "250 Ga. 199", "category": "reporters:state", "reporter": "Ga.", "case_ids": [ 1190867 ], "year": 1982, "pin_cites": [ { "page": "203" } ], "opinion_index": 0, "case_paths": [ "/ga/250/0199-01" ] }, { "cite": "836 F.2d 209", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10542997 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "212-13", "parenthetical": "citingPangburn" } ], "opinion_index": 0, "case_paths": [ "/f2d/836/0209-01" ] }, { "cite": "326 S.E.2d 365", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "367" } ], "opinion_index": 0 }, { "cite": "73 N.C. App. 336", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523965 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "338" }, { "page": "338" } ], "opinion_index": 0, "case_paths": [ "/nc-app/73/0336-01" ] }, { "cite": "445 S.E.2d 396", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "336 N.C. 316", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2534562, 2535915, 2539181, 2537523, 2539385 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/336/0316-04", "/nc/336/0316-01", "/nc/336/0316-05", "/nc/336/0316-02", "/nc/336/0316-03" ] }, { "cite": "439 S.E.2d 771", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "774" }, { "page": "774" } ], "opinion_index": 0 }, { "cite": "113 N.C. App. 341", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522145 ], "year": 1994, "pin_cites": [ { "page": "345" } ], "opinion_index": 0, "case_paths": [ "/nc-app/113/0341-01" ] }, { "cite": "311 S.E.2d 559", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1984, "pin_cites": [ { "page": "565" }, { "page": "565" }, { "page": "565" }, { "page": "567" }, { "page": "567" } ], "opinion_index": 0 }, { "cite": "310 N.C. 227", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2402972 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "233" }, { "page": "237" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0227-01" ] }, { "cite": "399 S.E.2d 587", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1991, "pin_cites": [ { "page": "589", "parenthetical": "claim dismissed because negligent employees were employees of State Ports Authority, not the Ports Authority Railway Commission, as named in the affidavit" } ], "opinion_index": 0 }, { "cite": "101 N.C. App. 375", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527745 ], "year": 1991, "pin_cites": [ { "page": "377", "parenthetical": "claim dismissed because negligent employees were employees of State Ports Authority, not the Ports Authority Railway Commission, as named in the affidavit" } ], "opinion_index": 0, "case_paths": [ "/nc-app/101/0375-01" ] }, { "cite": "261 S.E.2d 123", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "298 N.C. 567", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573187, 8573126, 8573206, 8573111, 8573148 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/298/0567-04", "/nc/298/0567-02", "/nc/298/0567-05", "/nc/298/0567-01", "/nc/298/0567-03" ] }, { "cite": "255 S.E.2d 203", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1979, "pin_cites": [ { "page": "206" }, { "page": "205", "parenthetical": "holding that although affidavit named only one negligent employee of defendant, while two were involved, it gave sufficient notice of which employee or employees was/were involved so that defendant could properly confine its investigation" } ], "opinion_index": 0 }, { "cite": "41 N.C. App. 548", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550505 ], "year": 1979, "pin_cites": [ { "page": "551" } ], "opinion_index": 0, "case_paths": [ "/nc-app/41/0548-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 143-297", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "458 S.E.2d 10", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "13", "parenthetical": "this Court's review limited to determination of whether Commission's findings are supported by \"any competent evidence\"" } ], "opinion_index": 1 }, { "cite": "119 N.C. App. 97", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11913673 ], "year": 1995, "pin_cites": [ { "page": "102", "parenthetical": "this Court's review limited to determination of whether Commission's findings are supported by \"any competent evidence\"" } ], "opinion_index": 1, "case_paths": [ "/nc-app/119/0097-01" ] }, { "cite": "463 S.E.2d 425", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "427", "parenthetical": "this Court bound by Commission's findings if supported by \"sufficient competent evidence\"" } ], "opinion_index": 1 }, { "cite": "120 N.C. App. 602", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916972 ], "year": 1995, "pin_cites": [ { "page": "605", "parenthetical": "this Court bound by Commission's findings if supported by \"sufficient competent evidence\"" } ], "opinion_index": 1, "case_paths": [ "/nc-app/120/0602-01" ] } ], "analysis": { "cardinality": 1060, "char_count": 27952, "ocr_confidence": 0.767, "pagerank": { "raw": 3.5421599465449614e-07, "percentile": 0.8848614340063842 }, "sha256": "f590f388fe921db45b43f34570a6dd0daf30b3da96cc9d48ea34577a47989d9f", "simhash": "1:e07395b294ef996a", "word_count": 4546 }, "last_updated": "2023-07-14T20:54:48.563497+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge McGEE concurs.", "Judge MARTIN, Mark D., concurs with separate opinion." ], "parties": [ "HAROLD DAVIS, Administrator of the Estate of Phillip Davis, Plaintiff v. NORTH CAROLINA DEPARTMENT OF HUMAN RESOURCES, Defendant" ], "opinions": [ { "text": "GREENE, Judge.\nThe North Carolina Department of Human Resources (defendant) appeals a Decision and Order of the North Carolina Industrial Commission (Commission), awarding Harold Davis (plaintiff), as administrator of the estate of Phillip Davis (Davis), damages for injuries occurring when Dondiago Rivers (Rivers) was released from Cherry Hospital where he had been involuntarily committed, and subsequently killed Davis.\nRivers had been committed to state mental hospitals on eleven separate occasions. He had a history of aggressive, hostile behavior, and had been previously convicted for shoplifting, damage to personal property, assault on a female, trespassing and communicating threats. On 17 February 1982, Rivers pled guilty and was sentenced to six years in prison for voluntary manslaughter, after he beat a man\u2019s head against a sidewalk until the man died. On 2 October 1984, Rivers was arrested for assault on a female and carrying a concealed weapon, after he chased after his victim with a knife in hand.\nBy Order dated 19 October 1984, the trial court found that Rivers was incapable to stand trial, and should be involuntarily committed pursuant to N.C. Gen. Stat. \u00a7 15A-1003. On 25 October 1984, the court found Rivers mentally ill and dangerous to others and involuntarily committed him to Cherry Hospital for 30 days. Rivers was reevaluated and on 15 November 1984 was recommitted to Cherry Hospital for another 180 days.\nWhile at Cherry Hospital, Rivers got into fights, and threatened patients and staff members. He was transferred to the \u201chigh management\u201d unit because of his fighting and anti-social behavior. Rivers was sent back to the behavior modification unit on 20 February 1985, where Dr. Perumallu saw Rivers on a weekly basis. Rivers was treated with medication to stabilize his behavior and showed improvement over the next two months. A report by Dr. Perumallu prepared 26 April 1985 stated that for the previous two months Rivers had not shown \u201cany physical and verbal aggressive behavior\u201d and recommended that Rivers was ready to stand trial at this time and \u201cdoes not meet the criteria for commitment.\u201d\nAt the hearing to determine whether Rivers should be discharged to stand trial, Dr. Perumallu testified that Rivers was responding well to medication, was not a threat or danger to others, but due to his drug and alcohol problems or if he stops taking the medication, which lead to his mental and behavioral problems, he should be supervised upon being released from the hospital. Dr. Perumallu wrote in his discharge report, made only days after the release hearing, that \u201c[i]n view of the past violence and his inability to understand his illness, inability to take medications, stress and at times taking marijuana and alcohol, even though patient denies the problems, all these factors\u201d may cause a \u201ccrisis of violence\u201d and \u201cdangerousness in the community.\u201d Dr. Perumallu\u2019s prognosis for Rivers was \u201cvery guarded ... in view of . . . his . . . stress situations, [and] altered mental state functionings.\u201d\nAlthough Rivers was found mentally ill, he was not found to meet the criteria for commitment, and was ordered discharged from Cherry Hospital by Judge Arnold Jones, the District Court Judge presiding, who had previous knowledge of Rivers\u2019 mental state and aggressive behavior from Rivers many times in court on other charges as well as a similar commitment hearing in 1978.\nUpon discharge, Rivers was released into the custody of the Wayne County Sheriff\u2019s Department. He was then evaluated at Dorothea Dix Hospital by Dr. Groce, who gave the opinion that at times Rivers was not able to tell right from wrong, and recommended that Rivers was \u201ccapable of proceeding to trial,\u201d but stated that whether he is found not guilty due to insanity or guilty, he should continue receiving treatment. Dr. Groce found that Rivers \u201cmay continue to present a danger to himself or to other people in the community.\u201d\nRivers was discharged to the Sheriffs Department with a two-week supply of medication, and a weekly follow-up plan for individual therapy at the Wayne Mental Health Center.\nOn 5 June 1985 Rivers pled guilty to assault on a female and carrying a concealed weapon. District Court Judge Joseph Setzer, who had once prosecuted Rivers on voluntary manslaughter, sentenced Rivers to two years in prison, but suspended it for three years, with two years of supervised probation.\nOn 18 August 1985, Davis was with two friends in Goldsboro. Rivers walked across an intersection in front of Davis\u2019 car pointing at the car and saying something that could not be heard. Davis got out of the car, went to the trunk and got a \u201ctire tool,\u201d at which time Rivers ran off. Two blocks down the road, Davis and his friends stopped at a club to buy some beer. While Davis was walking back to the car, Rivers ran up from behind and hit Davis on the head with a fence post, fracturing Davis\u2019 skull and killing him.\nPlaintiff brought suit before the Commission, pursuant to the North Carolina Tort Claims Act, alleging negligence by the State for releasing Rivers from Cherry Hospital when it knew or should have known that Rivers was violent and dangerous to others.\nPlaintiff\u2019s affidavit, filed with the Commission pursuant to N.C. Gen. Stat. \u00a7 143-297, listed the \u201cNorth Carolina Department of Human Resources, Division of Mental Health, Cherry Hospital, Thomas E. Buie, Jr., M.D., Director of Clinical Services\u201d as the name of the department, institution or agency of the state against which the claim is asserted and the name of the state employee who was alleged to be negligent. The affidavit\u2019s statement of facts states in part that \u201cprior to August of 1985, one Dondiago Rivers was a patient at Cherry Hospital, and has been a mental patient at Cherry Hospital for sometime . . . ; that the said department, acting by and through Thomas E. Buie, Jr., negligently caused Dondiago Rivers to be released in a violent state to his home county of Wayne County, North Carolina.\u201d\nDr. Malekpour, an expert in the field of psychiatry who had cared for Rivers at another facility, testified before the Commission that a reasonable standard of care required a report to the court that Rivers was \u201chighly dangerous\u201d and a person \u201cwho needed to be confined in one form or the other.\u201d\nDefendant\u2019s motion for summary judgment was denied. The Commission found that as Rivers\u2019 treating physician, Dr. Perumallu\nwas under a duty to exercise reasonable care in his treatment of Rivers in preparation for release to stand trial and more importantly in his recommendations to the court, who would rely thereon in determining whether Rivers was dangerous to himself or others. This duty extends to those in the community who might come to harm at the hands of Rivers if released when dangerous to himself or others.\n15. Dr. Perumallu breached the above-described duty owed to Phillip Davis and others when he reported to the court that Rivers was not dangerous to himself or others. . . . Judge Jones relied on Dr. Perumallu\u2019s recommendation that Rivers was not dangerous and the end result was that Rivers was released and committed murder again .... Dr. Perumallu knew or should have known that Dondiego [sic] Rivers did not have a structured environment outside of the hospital and was not likely to take his medication as prescribed. Dr. Perumallu knew or should have known that while Rivers may have stabilized for a few months, he was likely to go off his medication, decompensate quickly, and likewise quickly become a danger to the community. The fact that it was Judge Jones who made the ultimate decision or that Dr. Perumallu may have assumed Rivers was going back into the criminal justice system and would hopefully receive an appropriate disposition there is irrelevant.\n17. Dr. Perumallu\u2019s breach was the proximate cause of Phillip Davis\u2019 death. It was reasonably foreseeable that Rivers if released would harm or murder someone else.\nPlaintiff was awarded $100,000 for damages. Defendant appeals.\nThe issues are whether (I) the award should be dismissed because the affidavit does not name the negligent employee responsible for Davis\u2019 death; and (II) the evidence was sufficient to find negligence by the defendant, causing Davis\u2019 death.\nI\nDefendant argues that plaintiff failed to include in his affidavit \u201cthe name of the State employee upon whose alleged negligence the claim is based.\u201d N.C.G.S. \u00a7 143-297(2) (1993). Plaintiffs affidavit stating its claim against the State, filed with the Commission, listed \u201cThomas E. Buie, Jr., M.D., Director of Clinical Services\u201d at Cherry Hospital, as the negligent employee. Defendant contends that \u201cthe evidence does not tend to show that Dr. Buie was negligent or involved in the release of Mr. Rivers,\u201d but focuses on Dr. Perumallu\u2019s negligence, who was not added to the affidavit, and therefore \u201cthis claim against the defendant should be dismissed.\u201d\nThe purpose of requiring a claimant to name the negligent employee of the State agency is to enable the agency to investigate the employee involved and not all employees. Distributors, Inc. v. Dept. of Transp., 41 N.C. App. 548, 551, 255 S.E.2d 203, 206, cert. denied, 298 N.C. 567, 261 S.E.2d 123 (1979). Furthermore, although the Tort Claims Act is strictly construed, the rule of strict construction should not be replaced by one of \u201ctechnical stringency.\u201d Id. at 550, 255 S.E.2d at 205 (holding that although affidavit named only one negligent employee of defendant, while two were involved, it gave sufficient notice of which employee or employees was/were involved so that defendant could properly confine its investigation); see Laughinghouse v. State ex rel. Ports Ry. Comm\u2019n, 101 N.C. App. 375, 377, 399 S.E.2d 587, 589 (1991) (claim dismissed because negligent employees were employees of State Ports Authority, not the Ports Authority Railway Commission, as named in the affidavit).\nPlaintiffs affidavit gave sufficient notice to defendant to allow it to narrow its investigation to those involved with treating Rivers. The affidavit notified defendant that Davis\u2019 death was caused by a former patient, Rivers, who had been involuntarily committed to Cherry Hospital. Plaintiff named the correct state agency, as required by section 143-297, the specific division of that agency, as well as the hospital at which Rivers was committed and where the alleged negligence took place. At no time did defendant indicate that it was hampered in its investigation. Failure to name Dr. Perumallu, therefore, did not impede defendant\u2019s investigation, and the objective of section 143-297 was achieved.\nII\nDefendant also contends that Dr. Perumallu did not breach any duty to Davis and that even if he did, that the breach was not a proximate cause of Davis\u2019 death. We disagree.\nThe elements of a cause of action based on negligence are: a duty, breach of that duty, a causal connection between the conduct and the injury and actual loss. W. Page Keeton et al., Prosser and Keeton on The Law of Torts \u00a7 30, at 164-65 (5th ed. 1984) [hereinafter Prosser and Keeton on Torts). A duty is defined as an \u201cobligation, recognized by the law, requiring the person to conform to a certain standard of conduct, for the protection of others against unreasonable risks.\u201d Id. A breach of the duty occurs when the person fails to \u201cconform to the standard required.\u201d Id. \u201cProximate cause is a cause which in natural and continuous sequence, unbroken by any new and independent cause, produced the plaintiff\u2019s injuries, and without which the injuries would not have occurred.\u201d Hairston v. Alexander Tank & Equip. Co., 310 N.C. 227, 233, 311 S.E.2d 559, 565 (1984). The injurious result must have been reasonably foreseeable by a \u201cperson of ordinary prudence,\u201d although the defendant need not have foreseen the precise form of the injury. Id. at 233-34, 311 S.E.2d at 565. He need only have foreseen that some injury would result. Id. at 234, 311 S.E.2d at 565. There may be more than one proximate cause of an injury. Id. When there is more than one proximate cause, each negligent actor may be held liable for the injuries. Id.\nA\nDuty\nThe general rule is that there is no duty to protect others against harm from third persons. King v. Durham County Mental Health Auth., 113 N.C. App. 341, 345, 439 S.E.2d 771, 774, disc. rev. denied, 336 N.C. 316, 445 S.E.2d 396 (1994). A recognized exception, however, exists where a person has been involuntarily committed for a mental illness, in which case there is a duty on the institution to exercise control over the patient \u201cwith such reasonable care as to prevent harm to others at the hands of the patient.\u201d Pangburn v. Saad, 73 N.C. App. 336, 338, 326 S.E.2d 365, 367 (1985); see King at 345-46, 439 S.E.2d at 774; see also Currie v. United States, 836 F.2d 209, 212-13 (4th Cir. 1987) (citingPangburn). We reject the defendant\u2019s argument that its conduct must be measured \u201cin accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities.\u201d N.C.G.S. \u00a7 90-21.12 (1993). The section 90-21.12 standard of care is only applicable to medical malpractice actions, id., and a recommendation given a district court with regard to involuntary commitment or the capacity of a defendant to proceed is not a medical malpractice action. See Pangburn, 73 N.C. App. at 338, 326 S.E.2d at 367 (citing Bradley Center, Inc. v. Wessner, 250 Ga. 199, 203, 296 S.E.2d 693, 696-97 (1982)); N.C.G.S. \u00a7 90-21.11 (1993) (defining medical malpractice action as one arising \u201cout of the furnishing or failure to furnish professional services in the performance of medical . . . care by a health care provider\u201d).\nIn this case, Rivers was involuntarily committed into defendant\u2019s custody and it, therefore, had a duty to exercise reasonable care in the protection of third parties from injury by Rivers. This duty necessarily mandates the exercise of reasonable care in the advice given the district court with regard to the appropriateness of mental health commitment. See Hicks v. United States, 511 F.2d 407, 415 (D.C. Cir. 1975) (public mental hospital owed duty to court to provide report as to defendant\u2019s ability to stand trial and also to a subsequent victim of defendant).\nB\nBreach\nThe defendant makes two separate arguments that the record does not support a finding that it breached its duty. We disagree with both.\nLack of Evidence\nThe defendant first argues that there is insufficient evidence to support the finding that Dr. Perumallu failed to exercise reasonable care in the recommendation given the district court with regard to the appropriateness of mental health commitment. In reviewing whether the findings are supported by the evidence, we are bound by the findings of the Commission if they are supported by sufficient competent evidence in the record. Andrews v. Fulcher Tire Sales and Service, 120 N.C. App. 602, 605, 463 S.E.2d 425, 427 (1995). The evidence is sufficient if a reasonable mind might accept it as adequate to support the finding. Andrews, 120 N.C. App. at 605, 463 S.E.2d at 427.\nDr. Perumallu\u2019s report prepared for the district court stated that Rivers was mentally ill but did not meet the criteria for commitment because Rivers was not dangerous to others. At the time of the report he was aware of Rivers\u2019 violent history and that Rivers had failed to take his medication in the past, which was one factor leading to his violent behavior. Dr. Perumallu wrote in his discharge report, made only days after the release hearing, that \u201c[i]n view of the past violence and his inability to understand his illness, inability to take medications, stress and at times taking marijuana and alcohol, even though patient denies the problems, all these factors\u201d may cause a \u201ccrisis of violence\u201d and \u201cdangerousness in the community.\u201d Dr. Perumallu\u2019s prognosis, in his discharge report, was \u201cvery guarded ... in view of . . . his . . . stress situations, [and] altered mental state functionings.\u201d Dr. Malekpour, an expert in the field of psychiatry who had cared for Rivers at another facility, testified that a reasonable standard of care required that the treating psychiatrist report to the court that Rivers was \u201chighly dangerous\u201d and \u201cneeded to be confined in one form or the other.\u201d\nThis evidence is both competent and sufficient to support the findings of the Commission that the defendant breached its duty of exercising reasonable care in the advice given to the district court.\nMatter of Law\nThe defendant next argues that because Rivers had not committed any violent acts within two months of the district court hearing, he was not, as a matter of law, \u201cdangerous to others\u201d within the meaning of former N.C. Gen. Stat. \u00a7 122-58.2(l)b. 1979 N.C. Sess. Laws ch. 915, \u00a7 1 (codified as N.C.G.S. \u00a7 122-58.2(1)b) (repealed 1986). It follows, the defendant contends, that Dr. Perumallu\u2019s testimony was correct and not in breach of any duty. We disagree. \u201cDangerous to others\u201d is defined to mean:\nthat within the recent past, the person has inflicted or attempted to inflict or threatened to inflict serious bodily harm on another or has acted in such a manner as to create a substantial risk of serious bodily harm to another, and that there is a reasonable probability that such conduct will be repeated.\nId. (emphasis added). Although the evidence is that Rivers, within two months prior to the hearing, had not exhibited any acts of violence or threats, there were violent acts prior to that two month period.\nThe question is whether the two months proceeding the district court hearing is the \u201crecent past\u201d or whether the \u201crecent past\u201d extends back beyond those two months. The legislature did not define the term, choosing instead to leave the issue ambiguous. The legislature did in 1985, delete the term \u201crecent past\u201d and substitute the term \u201crelevant past.\u201d N.C.G.S. \u00a7 122C-3(ll)b (1993). We construe this legislative amendment as an effort on the part of the legislature to clarify the meaning of the statute, not to change the law. See Childers v. Parker\u2019s, Inc., 274 N.C. 256, 260, 162 S.E.2d 481, 483-84 (1968). We therefore construe the term \u201crecent past\u201d to mean \u201crelevant past\u201d and as such determine that the violent acts committed by Rivers within the six months prior to the district court hearing to be the \u201crelevant past.\u201d These acts are relevant because they occurred close enough in time to the district court hearing to have probative value on the ultimate question before the court of whether there was a \u201creasonable probability that such [violent] conduct [would] be repeated.\u201d 1979 N.C. Sess. Laws ch. 915, \u00a7 1; see N.C.G.S. \u00a7 8C-1, Rule 401 (1992) (defining relevant evidence). We do not attempt to define the term with any greater degree of preciseness and each case must be viewed on its own facts in determining whether violent acts are relevant to the inquiry of involuntary commitment. The courts will be the ultimate judge of whether the conduct occurs within a relevant time.\nC\nProximate Cause\nDefendant argues that its actions were not the proximate cause of Davis\u2019 death and plaintiffs injuries, because \u201c[t]here are too many intervening events and intentional acts by others.\u201d We disagree.\nDefendant argues that there are four separate intervening acts which would supersede any negligent action by Dr. Perumallu. First, at the commitment trial, despite testimony by Dr. Perumallu about Rivers\u2019 \u201canti-social personality ... which would tend to emerge under \u2022the stress caused by alcohol, drugs, arguments, or stopping prescribed medications,\u201d and Judge Jones familiarity with Rivers\u2019 reputation for violence, Judge Jones found Rivers did not meet the criteria for commitment. Defendant argues that the sole proximate cause of the release of Rivers was the \u201cdetermination by Judge Jones that the State had failed to carry it\u2019s [sic] burden of proving by clear, cogent, and convincing evidence that he was mentally ill and dangerous to himself and others.\u201d\nSecond, Rivers was released into the custody of the sheriff, at which point Dr. Groce determined that Rivers was stabilized and ready to stand trial. Third, Judge Setzer found Rivers competent to stand trial and \u201cgave Rivers his freedom\u201d when he suspended his sentence. Finally, over a month after Rivers\u2019 trial, \u201cDavis left his car and . . . trigger[ed] the events leading to his death.\u201d\n\u201cIn order for the conduct of the intervening agent to break the sequence of events and stay the operative force of the negligence of the original wrongdoer, the intervening conduct must be of such nature and kind that the original wrongdoer had no reasonable ground to anticipate it.\u201d Hairston, 310 N.C. at 237, 311 S.E.2d at 567. Except \u201cin cases so clear that there can be no two opinions among men of fair minds,\u201d the question of whether the original wrongdoer had a reasonable ground to anticipate the intervening conduct is a question for the fact finder. Id. at 238, 311 S.E.2d at 567. In this case, the evidence is such that the Commission could determine that the defendant could have reasonably foreseen the subsequent acts and the resultant harm to Davis. Because there is evidence to support that determination, we are bound to accept the finding that the defendant\u2019s breach was the proximate cause of the death.\nAffirmed.\nJudge McGEE concurs.\nJudge MARTIN, Mark D., concurs with separate opinion.\n. It may be that because there is no evidence that the intervening acts in this case were negligent or culpable, they cannot insulate the defendant from its negligent conduct. See Balcum v. Johnson, 177 N.C. 213, 216, 98 S.E. 532, 534 (1919) (\u201cusually the [intervening] act must be in itself negligent, or at least culpable\u201d); see also Prosser and Keeton on Torts \u00a7 44 (discussing intervening causes). Because we have decided that the evidence can support a finding that the intervening acts were foreseeable, we need not reach the additional issue of whether those acts must be negligent or culpable. In any event, this issue was not argued by the parties.", "type": "majority", "author": "GREENE, Judge." }, { "text": "Judge MARTIN, Mark D.,\nconcurring.\nI write separately to emphasize the need for the appellate division to articulate a consistent standard of review when considering the Commission\u2019s factual findings. Compare Andrews v. Fulcher Tire Sales and Service, 120 N.C. App. 602, 605, 463 S.E.2d 425, 427 (1995) (this Court bound by Commission\u2019s findings if supported by \u201csufficient competent evidence\u201d) with Strickland v. Carolina Classics Catfish, Inc., 119 N.C. App. 97, 102, 458 S.E.2d 10, 13 (1995) (this Court\u2019s review limited to determination of whether Commission\u2019s findings are supported by \u201cany competent evidence\u201d). The majority opinion follows the standard of review articulated in Andrews v. Fulcher, supra, and concludes there is sufficient competent evidence to uphold the Commission\u2019s findings. Because I believe the Commission\u2019s findings should be affirmed whether reviewed under the \u201cany competent evidence\u201d standard, or, alternatively, the \u201csufficient competent evidence\u201d standard, I concur in the majority opinion.", "type": "concurrence", "author": "Judge MARTIN, Mark D.," } ], "attorneys": [ "Duke & Brown, by John E. Duke, and, Jonathan S. Williams, for plaintiff-appellee.", "Attorney General Michael F. Easley, by Assistant Attorney General William H. Borden, for defendant-appellant North Carolina Department of Human Resources." ], "corrections": "", "head_matter": "HAROLD DAVIS, Administrator of the Estate of Phillip Davis, Plaintiff v. NORTH CAROLINA DEPARTMENT OF HUMAN RESOURCES, Defendant\nNo. COA95-190\n(Filed 19 December 1995)\n1. State \u00a7 46 (NCI4th)\u2014 death caused by former mental health patient \u2014 negligent employee not specifically named\nIn an action under the Tort Claims Act to recover damages for injuries occurring when a patient was released from Cherry Hospital where he had been involuntarily committed and the patient subsequently killed plaintiffs intestate, the claim was not subject to dismissal on the ground that plaintiffs affidavit failed to include \u201cthe name of the State employee upon whose alleged negligence the claim is based\u201d as required by N.C.G.S. \u00a7 143-297(2) because it failed to name the patient\u2019s treating physician who recommended his release where plaintiff listed the \u201cNorth Carolina Department of Human Resources, Division of Mental Health, Cherry Hospital, Thomas E. Buie, Jr., M.D., Director of Clinical Services\u201d as the state agency and employee alleged to be negligent; plaintiffs affidavit gave sufficient notice to defendant to allow it to narrow its investigation to those involved with treating the patient; at no time did defendant indicate that it was hampered in its investigation; and the object of the statute was achieved.\nAm Jur 2d, Municipal, County, School, and State Tort Liability \u00a7\u00a7 661 et seq.\n2. Hospitals and Medical Facilities or Institutions \u00a7 65 (NCI4th)\u2014 mental health patient \u2014 duty of defendant to exercise reasonable care to protect third parties, to advise district court\nWhere a mentally ill patient was involuntarily committed into the custody of a state institution, the institution had a duty to exercise reasonable care in the protection of third parties from injury by the patient, and this duty necessarily mandated the exercise of reasonable care in the advice given the district court with regard to the appropriateness of mental health commitment.\nAm Jur 2d, Hospitals and Asylums \u00a7\u00a7 14, 16.5, 19-25.\n3. Physicians, Surgeons, and Other Health Care Professionals \u00a7 123 (NCI4th)\u2014 release of mental patient \u2014 failure of examining psychiatrist to exercise reasonable care\nIn an action to recover damages for the death of plaintiff\u2019s intestate who was killed by a patient who had been released from Cherry Hospital, the evidence was sufficient to support the Industrial Commission\u2019s finding that the examining psychiatrist failed to exercise reasonable care in his recommendation given the district court with regard to the appropriateness of mental health commitment where the evidence tended to show that the psychiatrist was aware of the patient\u2019s violent history, of his failure to take medication in the past, and of the fact that failure to take medication led to violent behavior.\nAm Jur 2d, Physicians, Surgeons, and Other Healers \u00a7\u00a7 357 et seq.\n4. Hospitals and Medical Facilities or Institutions \u00a7 65 (NCI4th)\u2014 former mental patient \u2014 violent acts in recent past \u2014 same as relevant past \u2014 relevant past as six months preceding hearing\nIn an action to recover damages for the death of plaintiff\u2019s intestate who was killed by a patient who had been released from Cherry Hospital, there was no merit to defendant\u2019s contention that the patient had not committed any violent acts within two months of the district court hearing and therefore was not, as a matter of law, dangerous to others within the meaning of N.C.G.S. \u00a7 122-58.2(l)(b), since the term \u201crecent past\u201d as used in that statute means \u201crelevant past,\u201d and violent acts committed within six months prior to the hearing occurred within the relevant past.\nAm Jur 2d, Hospitals and Asylums \u00a7\u00a7 38, 44.\n5. Hospitals and Medical Facilities or Institutions \u00a7 65 (NCI4th); Negligence \u00a7 22 (NCI4th)\u2014 death caused by former mental patient \u2014 release as negligence \u2014 no intervening negligence\nIn an action to recover damages for the death of plaintiff\u2019s intestate who was killed by a patient who had been released from Cherry Hospital, there was no merit to defendant\u2019s contention that its actions were not the proximate cause of the death because there were intervening acts, since the evidence was such that the Commission could determine that defendant could have reasonably foreseen the subsequent acts and the resultant harm to plaintiffs intestate.\nAm Jur 2d, Hospitals and Asylums \u00a7\u00a7 38, 44; Negligence \u00a7\u00a7 492-501.\nJudge Mark D. Martin concurring.\nAppeal by defendant from Decision and Order for the Full Commission entered 14 November 1994. Heard in the Court of Appeals 14 November 1995.\nDuke & Brown, by John E. Duke, and, Jonathan S. Williams, for plaintiff-appellee.\nAttorney General Michael F. Easley, by Assistant Attorney General William H. Borden, for defendant-appellant North Carolina Department of Human Resources." }, "file_name": "0105-01", "first_page_order": 139, "last_page_order": 150 }