Is there a duty? Limiting college and university liability for student suicide.

• Author: Dyer, Susanna G.

This Note argues that nonclinician administrators employed by institutions of higher education do not have a special relationship with their students such that they have a duty to act with reasonable care to prevent a foreseeable student suicide. Courts that have in recent years ruled to the contrary have done so by incorrectly basing their duty-of-care analysis on foreseeability of harm alone. With an eye toward a proper duty-of-care analysis, this Note analyzes multiple factors to reach its conclusion, including the ideal relationship between colleges and their students and the burden on and capability of colleges to protect their students from a particular harm. Moreover, public policy concerns weigh heavily against imposing a duty on nonclinician university administrators. This Note further argues that the tort doctrine of negligent performance of affirmative duties undertaken provides a better framework within which to assess the liability of institutions of higher education for student suicides by holding those institutions responsible for egregious missteps regarding student mental health problems. Liability pursuant to negligent performance of affirmitive duties undertaken requires that colleges and universities implement and operate their programs with due care, but leaves sufficient latitude for individual colleges and universities to explore suicide prevention techniques that are effective and feasible in light of their student body, resources, and overall educational philosophy.

TABLE OF CONTENTS INTRODUCTION I. HISTORICAL LIABILITY FOR SUICIDE AND INSTITUTIONAL LIABILITY IN GENERAL A. Liability for Suicide at Common Law B. Duties Institutions of Higher Education Owe to Their Students 1. Historical Paradigms of Institutional Relationships with and Duties to Students 2. Recent Developments: Courts Divided on Institutional Liability for Student Safety II. INSTITUTIONS OF HIGHER EDUCATION DO NOT HAVE A DUTY OF CARE TO PREVENT STUDENT SUICIDE A. Determining Whether a Special Relationship Exists Requires a Multifactor Duty-of-Care Analysis B. The Shin and Schieszler Courts Incorrectly Concluded that a Special Relationship Existed Solely Because the Students' Suicides Were Foreseeable C. A Proper Multifactor Analysis and Public Policy Support the Conclusion that Institutional Nonclinicians Should Not Have a Legal Duty to Prevent Student Suicide III. RESTATEMENT SECTION 323 AS A SAFETY NET AND PROPOSED ILLUSTRATIONS TO RESTATEMENT SECTIONS 314A AND 323 A. Holding Institutions of Higher Education Liable for Increased Risk of Student Suicide Under Restatement Section 323 B. Proposed Illustrations to Restatement Sections 314A and 323 CONCLUSION INTRODUCTION

In February of 1999, Nina Davis-Millis, a librarian at the Massachusetts Institute of Technology ("MIT"), served as a housemaster at the Random Hall dormitory on MIT's campus. (1) In her role as housemaster, Davis-Millis learned that Elizabeth Shin, a first-year student who lived in Random Hall, had been admitted to McLean Hospital for a one-week psychiatric hospitalization after overdosing on Tylenol with codeine. (2) With Elizabeth's permission, Davis-Millis informed Elizabeth's parents that she was in the hospital. (3) Although Elizabeth, in consultation with her father, declined a doctor's recommendation to seek treatment outside of the university, she did agree to meet with an MIT psychiatrist periodically for the remainder of the academic year. (4)

Elizabeth's psychological problems continued when she returned to MIT and Random Hall for her sophomore year. In March of 2000, a student notified Davis-Millis that Elizabeth was cutting herself. (5) Davis-Millis persuaded Elizabeth to seek treatment at MIT's mental health facilities, and, with Elizabeth's consent, contacted her parents to inform them of their daughter's continuing problems. (6) Elizabeth's parents took Elizabeth home for spring break, but after she returned to campus her mental condition continued to deteriorate despite an antidepressant regimen and counseling sessions with various MIT psychiatrists. (7) From late March through early April, Davis-Millis kept in contact with an MIT dean about Elizabeth's condition and, presumably in order to be able to continue monitoring Elizabeth, discouraged her from moving out of Random Hall. (8)

On April 8, 2000 MIT campus police brought Elizabeth to MIT's medical health center after she threatened to kill herself with a knife. (9) The on-call psychiatrist determined that Elizabeth was not acutely suicidal and released her. (10) When late the following night two Random Hall students informed Davis-Millis that Elizabeth had again threatened suicide, the housemaster sought the advice of the psychiatrist who had treated Elizabeth the previous day. (11) Per the doctor's instruction, Davis-Millis checked on Elizabeth that night. (12) On the morning of April 10, Davis-Millis conferred with the dean about Elizabeth. (13) At an 11:00 a.m. meeting, MIT deans and psychiatrists discussed Elizabeth's situation and decided that Elizabeth would attend an appointment the next day to begin off-campus behavioral therapy treatment. (14) Later that night, Random Hall students discovered a fire in Elizabeth's room. (15) Elizabeth died of "self-inflicted thermal burns" some days later. (16)

Elizabeth's parents sued MIT, its medical professionals, and its nonclinician administrators--including Davis-Millis--for failing to prevent Elizabeth's suicide. (17) On Davis-Millis's motion for summary judgment, the Massachusetts Superior Court ruled that because Davis-Millis could have foreseen Elizabeth's suicide, the housemaster had a special relationship with Elizabeth and therefore owed her a duty to exercise reasonable care to prevent her suicide. (18) MIT settled the lawsuit with the Shins before the question of whether Davis-Millis had breached that duty reached a jury. (19)

As in Shin, a federal district court in Virginia held in Schieszler v. Ferrum College that a dean and resident advisor had a duty to exercise reasonable care to prevent a student's suicide. (20) In Schieszler, a Ferrum College student named Frentzel committed suicide in his dorm room. (21) Frentzel's personal representative sued the college, a dean, and a dormitory resident assistant for wrongful death. (22) The plaintiff claimed that the defendants were " 'negligent by failing to take adequate precautions to insure that Frentzel did not hurt himself.'"(23) Prior to Frentzel's suicide, the dean and resident assistant had noticed Frentzel had self-inflicted bruises and made Frentzel sign a statement that he would not hurt himself. (24) After signing the statement, Frentzel wrote two notes to his girlfriend implying he planned to commit suicide. (25) By the time the dean and resident assistant responded to the second note, however, Frentzel had hanged himself in his dorm room. (26)

The Shin and Schieszler courts' holdings deviated from previous cases holding that nonclinicians do not have a duty to exercise reasonable care to prevent suicide. (27) With some exceptions, plaintiffs claiming liability for a loved one's suicide generally fail to establish that defendants owed the deceased a duty to prevent his or her suicide. (28) Tort law does not assign defendants an affirmative duty to prevent foreseeable harm absent a special relationship. (29) The Shin and Schieszler courts seemingly brushed aside this rule of no affirmative duty by holding that the nonclinician defendants had a special relationship with Elizabeth--and thus owed her a duty of care--solely because her suicide was foreseeable.

While college students are actually less likely to commit suicide man noncollege students in the same age range, student suicide is the second-most common cause of college student death; approximately 1100 college students commit suicide each year. (30) Further, college counselors have in recent years reported an increase in the number of students diagnosed with severe psychological problems. (31) In 2005, for example, ninety-five percent of college counseling directors nationwide reported an increase in the number of college students who were already on psychiatric medication when they came to the counseling center for assistance. (32)

Because the number of pending lawsuits against institutions of higher education is significant, (33) colleges and universities have struggled to balance their students' best interests against their own interest in avoiding liability for student suicide, and higher education attorneys and administrators worry about the potential implications of the Shin court's legal analysis. (34) Should a foreseeability analysis alone impose upon nonclinician administrators a duty to prevent student suicide, institutions of higher education may strategically alter their approach to student mental health issues in a way that negatively affects their students' mental health. (35) After Shin, colleges fear that "any program to increase student safety may also increase the institution's liability." (36) Because most programs aimed at reaching out to students with severe mental health problems will involve college administrators learning specific details about students' problems, any subsequent student suicide is more likely to be viewed by a court as having been foreseeable to that administrator. Institutions, then, may judge that the safer course from a risk-management perspective is to avoid foreseeability-generated liability by not offering such programs at all.

The Restatement (Second) of Torts includes several sections that are helpful in understanding the legal doctrines discussed in this Note. First, as the Shin and Schieszler decisions demonstrate, whether institutions of higher education ("IHEs") have an affirmative duty to protect students from harm is a key question in determining IHE liability for student suicide. Restatement section 314, Duty to Act for Protection of Others...