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Barry v. Turek - 218 Cal. App. 3d 1241, 267 Cal. Rptr. 553 (1990)


Psychotherapists have immunity from claims except where the plaintiff proves that the patient has communicated to his or her psychotherapist a serious threat of physical violence against a reasonably identifiable victim or victims.


Plaintiff Margaret Barry was sexually assaulted by Bismillah Jan, a patient who was being treated on the same floor of the hospital on which Barry worked. Barry brought an action against the Jan's psychiatrist, defendant Dr. Peter Turek, alleging negligence and negligent infliction of emotional distress. The trial court granted Turek’s motion for summary judgment on the ground that he was immune from liability under  Cal. Civ. Code § 43.92(a), which limits psychotherapists' liability to situations where a patient has communicated a serious threat of physical violence against a reasonably identifiable victim. Barry sought review.


Could defendant psychiatrist Turek be held liable to injured hospital worker Barry for the inappropriate sexual contact made by Turek's patient when Turek was not apprised of the fact that his patient posed a threat of serious physical violence?




The Court of Appeal affirmed the trial court's award of summary judgment in favor of defendant-respondent psychiatrist Turek. The Court explained that section 43.92(a) was enacted to limit the liability of psychotherapists under Tarasoff. The Court was satisfied that plaintiff-appellant Barry established that she was part of a group of "reasonably identifiable victims." Based on Jan's past pattern of conduct, any female working full-time on the seventh floor of St. Mary's was reasonably identifiable as a victim of Jan's inappropriate sexual behavior. The much more difficult question was whether Barry has sufficiently shown that Turek ought to have been aware that Jan presented a serious threat of physical violence. The Court held that there was insufficient evidence to suggest that Jan’s prior conduct should have given Turek reason to be aware that the patient was likely to commit such a serious sexual assault because his prior actions did not constitute a serious threat of physical violence for the purposes of establishing an exception to the immunity provided by section 43.92(a). Accordingly, the trial court correctly granted Turek's motion for summary judgment.

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