Duty of Care

• Publication year: 2021

76 Nebraska L. Rev. 301. Duty of Care

301

Charles J. Williams*

Fault and the Suicide Victim: When Third Parties Assume a Suicide Victim's Duty of Self-Care

TABLE OF CONTENTS

I. Introduction 301
II. Fault-Based Analysis Under Tort Law 303
III. Assuming the Suicide Victim's Duty of Self-Care 305
IV. Factors Establishing a Defendant's Assumption of a
Suicide Victim's Duty of Self-Care 309
A. Custody and Control 310
B. Knowledge of Suicidal Ideation 311
C. Summary of Factors 313
V. Sources of Confusion 313
A. Simple Negligence by Suicidal Persons 313
B. Capacity-Based Fault Determinations 314
C. Proximate Cause 316
VI. Conclusion 318

I. INTRODUCTION

A fifty-one-year-old man voluntarily admitted himself to a psychiatric hospital for treatment of his depression. Five days after his admission, he accompanied a small group of fellow patients and an occupational therapist on a recreational outing off of the hospital grounds. On the return trip, the man told the therapist that he was about to vomit and asked her to pull off to the side of the road. When she stopped the van, he jumped out, ran to a highway overpass, climbed up on the ledge, and flung himself to his death. His family later sued the hospital for wrongful death.(fn1)

The hospital asserted as an affirmative defense that the patient was contributorily negligent and sought at trial to have the jury com

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pare the hospital's fault against the patient's fault. The trial court held as a matter of law, however, that the hospital assumed the duty to prevent a known suicidal patient from committing suicide. Accordingly, the court reasoned that the very act that the hospital assumed a duty to prevent-the patient's suicide-could not constitute a basis for contributory negligence.(fn2) Other courts, faced with similar facts, have reached the same conclusion.(fn3)

Thus, hospitals, jails, and others who assume some responsibility for suicidal people may discover that they have become the guarantors of the lives of suicidal people, even when these suicidal people knowingly and voluntarily act as agents of their own destruction. In the face of lawsuits, courts may bar these defendants from asserting defenses that would allow juries to consider the role of the suicide victims'(fn4) own actions when attributing fault among the responsible parties. Exempting suicide victims from the fault analysis places hospitals and other defendants in tenuous positions given that, as a practical matter, it is impossible to prevent a suicide by person driven to kill himself, no matter what preventive steps a defendant may take.(fn5)

The suicide rate in the United States actually exceeds the country's murder rate. In 1993, for example, more than 31,000 people committed suicide in the United States, compared to 25,470 people who died as victims of homicide.(fn6) As could be expected, a large number of these suicides result in lawsuits. It is not surprising, therefore, that failure to prevent suicide is one of the leading reasons for malpractice suits against mental health professionals.(fn7) Jails, prisons, and law enforcement agencies also defend large numbers of suits by inmates who commit suicide while in state custody. These suits are similarly based on allegations that the law enforcement defendants were negligent in failing to prevent the suicides.

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Suicide, however, is a voluntary act by a person who consciously chooses to end his(fn8) own life. When a person fails to exercise ordinary care to ensure his own safety, the law regards that person as the author of his own injuries.(fn9) It would seem to follow, therefore, that a court may justifiably bar recovery by the suicide victim.(fn10) If a court does not bar his recovery completely, the voluntary nature of the suicide victim's fault would suggest that a jury at least should be able to compare the suicide victim's fault in causing his own injury or death against a defendant's alleged share of the fault. What then justifies barring defendants from comparing the suicide victim's fault in some cases, but not in others?

This Article addresses the treatment of suicide victims under tort law fault analysis in an effort to provide some understanding of and structure to the subject. The Article begins by reviewing fault-based analysis under tort law generally and the defenses of contributory and comparative fault. Next, the Article discusses some of the cases in which courts have addressed the issue of fault on the part of suicide victims, finding that the cases contain confusing analysis and conflicting results. The Article then reviews these cases and derives from them two key factors-custody and knowledge of suicide potential-as necessary elements for a court to find that a hospital, jail, or some other defendant has assumed the duty of self-care that a suicidal person would otherwise owe to himself. The Article concludes by analyzing and clarifying three issues that have caused confusion as they relate to the fault of suicide victims: simple negligence of an otherwise suicidal person, proximate causation, and the lower standard of care for someone with reduced mental capacity.

II. FAULT-BASED ANALYSIS UNDER TORT LAW

Tort law is based upon the premise that liability lies with those who have a duty of care for another, breach that duty, and cause injury as a result. The goal of tort law is to discourage unreasonable

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behavior. The duty of care can encompass either the duty not to do some act that injures another (a misfeasance tort)(fn11) or the duty to do some act to prevent injury to another (a nonfeasance tort).(fn12) Claims by a suicide victim or his family alleging that a third party failed to take steps to prevent a suicide are nonfeasance claims. For a plaintiff to prove a nonfeasance tort, the plaintiff must show that (1) the plaintiff had a special relationship with the defendant that gave rise to a duty on the part of the defendant to take care of the plaintiff, and (2) the harm that befell the plaintiff was of the type the defendant should have foreseen. In a suicide case, the plaintiff therefore must demonstrate that both a special relationship existed between the defendant and the suicide victim that gave rise to a duty of care,(fn13) and the suicide attempt was foreseeable.(fn14)

Often in tort cases, a defendant blames the injured party as being solely or partially responsible for his own injuries. Depending on the applicable state statutory scheme, the injured party's own fault may limit,(fn15) or even bar,(fn16) his recovery from the defendant, or the injured party may share the fault for the plaintiff's injury. Defendants often assert defenses of contributory or comparative fault(fn17) when sufficient evidence shows that the injured party shares some of the fault for his own injury. The burden is upon the defendant, however, to prove each

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element necessary to establish fault on the part of the victim.(fn18) Defense claims that the suicide victim was at fault for his own injuries is a claim of misfeasance.

Thus, the defendant must establish that the injured party owed himself a duty of care, that he breached that duty, and that this breach was a proximate cause of the injury sustained.(fn19) It is axiomatic that people have the duty to take care of themselves, to avoid danger, and to refrain from actions that may cause themselves harm.(fn20) A person who voluntarily and intentionally subjects himself to an unreasonable risk of personal injury or death, the danger of which was or should have been foreseen, violates the duty imposed upon all persons to use ordinary care for their own safety.(fn21)

If, in fact, most suicides are voluntary and intentional acts of self-destruction, it stands to reason that suicide victims should seldom, if ever, recover damages from third parties for the consequences of their own acts.(fn22) At the very least, their own voluntary, self-destructive act should drastically limit their recovery under a comparative fault analysis. In practice, however, suicides result in some of the highest number of lawsuits and awards.(fn23) This can be explained by a class of cases involving suicides in which defendants are, or should be, barred from asserting defenses focusing on the suicide victim's own fault.(fn24) Courts repeatedly have struggled with these cases over the years, resulting in a muddled collection of conflicting decisions.

III. ASSUMING THE SUICIDE VICTIM'S DUTY OF SELF-CARE

Many courts have been presented with the issue of whether a third person at some point assumed the duty of self-care that a suicide victim owed to himself. Suicides at hospitals or psychiatric facilities are frequent sources of these cases. Most courts that have directly addressed this type of case have held that when hospitals admit known suicidal patients, hospitals assume the duty that patients normally

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would owe to themselves to refrain from taking actions that could harm them.(fn25)

A hospital's assumption of the patient's duty of self-care thus prohibits it from later asserting affirmative defenses of comparative or contributory negligence if the patient is injured in a suicide attempt. Likewise, courts have sometimes found that doctors and nurses have personally assumed the duty of care that the patient owes to himself, therefore also barring the jury's comparative fault analysis.(fn26) This situation has arisen in settings other than hospitals. For example, courts have found in some cases that prisons and jails have assumed the duty of care to prevent known suicidal prisoners from harming themselves, consequently barring juries from considering the fault of the prisoner in apportioning liability.(fn27)

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These courts generally have reasoned that allowing such a defendant to blame the suicide victim "would serve to excuse [the defendant's] own...