Suicide and Foreseeability

Where a defendant (who happened to by a psychiatrist) knew of decedent’s past suicide attempt, knew he had just ended his relationship with her, and let the decedent stay in his home alone with an unsecured gun, the Tennessee Supreme Court reinstated the trial court’s grant of summary judgment on a negligence case against defendant related to decedent’s suicide, holding that the “suicide constitutes a superseding intervening event that breaks the chain of proximate causation.”

In Cotten v. Wilson, No. M2016-02402-SC-R11-CV (Tenn. June 19, 2019), the personal representative of decedent’s estate brought suit against defendant for negligence, seeking to “hold the defendant liable for negligently facilitating the decedent’s suicide.” Decedent was married and had a son when she met and began an affair with defendant. Decedent was a nurse at Skyline Hospital, and defendant was a psychiatrist there. Decedent divorced her husband in 2012, but she retained equal co-parenting time of her son. Two years after beginning the relationship, in October 2013, decedent moved in with defendant, at which time defendant “noticed that [she] was having frequent crying spells and seemed to be struggling with eviction, job loss, and her new job not working out.” Defendant stated that decedent was “not as energetic and motivated as she once was, and on certain days she did not take care of herself.”

In late 2013, decedent began seeing another psychiatrist at the hospital and was given medication for depression and anxiety. Defendant was aware of decedent’s treatment.

In January 2014, the child’s father filed for full custody of the son, and three days later decedent was taken to the ER because of an “overdose of Ativan and the consumption of nearly a full bottle of wine.” Decedent was taken to a psychiatric hospital, and was eventually released to defendant. Defendant assured the treating physician at the hospital that he would be certain that decedent followed up with her psychiatrist within seven days, but that never occurred. Although decedent initially denied that she was attempting suicide at this time, she later admitted to defendant that “she actually had been contemplating suicide[.]” Decedent did not follow up with her treating psychiatrist within the prescribed seven days, and neither decedent nor defendant ever informed him of the attempted suicide.

In April 2014, the father obtained “majority custody” of the son, and in June 2014 defendant “noticed that [decedent] was having frequent crying spells because of the loss of equal parenting time with her son.” Decedent called her psychiatrist in June 2014 (her first contact with him since her January hospitalization) and he noted that she was “doing poorly and was in distress and crying.”

In August 2014, defendant broke up with decedent and she moved out, but the two continued seeing each other. In October 2014, defendant acquired a handgun and ammunition, and he placed each in two separate socks in unlocked drawers of his china cabinet.

On October 14, 2014, decedent had her last contact with her treating psychiatrist. During this conversation, he asked her whether she had “suicidal ideations,” and she stated that she did not.

On October 26, 2014, while decedent and her son were at defendant’s house, defendant admitted to showing them the gun, although it was unclear whether decedent saw where the gun was stored. That same day, defendant told decedent that “he was interested in pursuing a relationship with another woman,” and decedent became very upset. Following this incident, the father informed decedent that he was considering seeking supervised visitation due his fears about the situation.

On November 1, 2014, defendant agreed to allow decedent to stay in his home while he was out of town. That following Sunday, on November 9th, decedent shot herself with defendant’s handgun in his home and died.

After decedent’s death, information on her computer indicated that she had been involved in prostitution and/or the production of pornography for over a year before her death, and was “living a double life.”

The estate’s personal representative filed this case, alleging that defendant “owed a duty to [decedent] to properly store and maintain his firearm in a safe manner and condition,” and that “defendant knew or reasonably should have known that, if [decedent] had access to the firearm, there would be a great likelihood that she would harm herself, particularly because he knew of her fragile mental state and suicidal tendencies.” The trial court granted summary judgment to defendant, holding that “defendant’s conduct was neither the cause-in-fact nor the proximate cause of the [decedent’s] death.” The Court of Appeals overturned, holding that there were genuine issues of material fact as to foreseeability. The Supreme Court, however, overruled the Court of Appeals and affirmed summary judgment for defendant.

In a thirty-five page opinion, the Supreme Court began with a lengthy history of the concepts of legal cause, superseding intervening events, the suicide rule, and exceptions to the suicide rule in Tennessee. “A plaintiff in a wrongful death negligence action must prove that the defendant’s conduct was both the cause-in-fact and the legal cause,” or proximate cause, of the death. (internal citation omitted). When determining proximate cause, foreseeability “plays an important role[.]” In some cases, “an intervening event may interrupt the chain of proximate cause between the defendant’s negligence and the victim’s injury.” A defendant claiming that a superseding cause relieves him or her from liability must show four elements:

(1) the harmful effects of the superseding cause must have occurred after the original negligence; (2) the superseding cause must not have been brought about by the original negligence; (3) the superseding cause must actively work to bring about a result which would not have followed from the original negligence; and (4) the superseding cause must not have been reasonably foreseeable by the original negligent party.

(internal citation omitted).

When the alleged intervening act is a suicide, “courts in Tennessee and elsewhere have generally held that suicide will be deemed a superseding cause of death if it was ‘a willful, calculated, and deliberate act of one who has the power of choice.’” (internal citation omitted). “The suicide rule is based on the notion that suicide committed by a person who has the power of choice is an abnormal thing, and that no reasonable person could foresee that a rational person would intentionally choose to commit suicide.” (internal citation and quotations omitted).

Nonetheless, there are exceptions to the suicide rule—(1) “where it is reasonably foreseeable that the defendant’s conduct will cause a mental condition in the decedent that would lead to the self-destructive act,” (2) where the suicide occurs in a custodial context, (3) where there was a special relationship between the defendant and decedent, and (4) “situations in which the defendant facilitated the suicide by supplying the decedent with the means to carry it out.” Further, in a 2017 case, the Tennessee Court of Appeals ruled that “the suicide rule should not be applied mechanically and [it] characterized the pivotal question as whether the decedent’s suicide was reasonably foreseeable, not whether the facts fit one of the exceptions[.]” (Ramsey v. Cocke County, No. E2016-02145-COA-R3-CV (Tenn. Ct. App. June 23, 2017)). In the Ramsey case, the Court of Appeals overturned summary judgment for defendant, and the Supreme Court denied permission to appeal.

With this history in mind, the Supreme Court stated in this case that “although Tennessee courts have recognized the usefulness of the more common exceptions to the suicide rule, they have clearly not been bound by them,” and that “suicide may not be deemed a superseding cause even when the facts do not neatly fit into one of the common exceptions, provided the decedent’s suicide was a reasonably foreseeable probability naturally resulting from the defendant’s conduct.” (internal citation omitted). The Court stated:

Thus, to the extent that the Defendant in this case argues that his conduct cannot be deemed the legal cause of [decedent’s] suicide unless the facts fit precisely into one of the common exceptions to the suicide rule, we reject that argument. Regarding proximate or legal cause, we agree that the touchstone is foreseeability, not whether a given case fits into a previously carved-out exception. …[T]he crucial inquiry is whether the defendant’s negligent conduct led to or made it reasonably foreseeable that the deceased would commit suicide. If so, the suicide is not an independent intervening cause breaking the chain of legal causation. Nevertheless, though application of the suicide rule has changed somewhat, the reasons for it remain relevant. …For this reason, in cases where Tennessee courts have recognized an exception to the suicide rule, they have required solid evidence in the record that the decedent’ suicide was a reasonably foreseeable probability resulting from the defendant’s conduct.

(internal citations and quotations omitted).

Moving to the facts of this case, the Court first noted that “none of the more common exceptions to the suicide rule are applicable under these facts.” The estate, however, stressed foreseeability, arguing that the decedent’s “suicide was reasonably foreseeable to this particular Defendant.” The estate hinged its argument on the facts that defendant showed decedent his unsecured gun immediately before telling her he was interested in another woman, and that shortly thereafter he allowed her to stay alone in his home, “all while knowing that [decedent] was in a fragile mental state.” The Supreme Court ruled, though, that it “agree[d] with the trial court that there [was] no evidence to support a finding that [decedent’s] suicide was reasonably foreseeable to the Defendant during the relevant time period.”

The Court found that since her suicide attempt in January 2014, “there are no facts in the record indicating the Defendant should have seen [decedent] as having an outsized, suicidal response to the various stressors in her life.” The Court stated that “the evidence supports only a finding that [decedent] had seemed to be in a sound frame of mind for several months.” The Court noted that “each person in [decedent’s] life was surprised at the news of her suicide.” While the estate offered expert testimony from two doctors who both testified that a person who is depressed should not be left alone with a gun, and that defendant, as a psychiatrist, would know this, the Court found that this testimony was irrelevant, as it was “probative only of the steps the Defendant allegedly should have taken if he had reason to know that [decedent] was depressed or suicidal in November 2014,” which he did not.

The Court concluded that “even for a defendant who is aware of a decedent’s past suicide attempt and mental health issues, there must be facts in the record that would have put the defendant on notice that suicide was a reasonably foreseeable probability at the time of the allegedly negligent acts.” Here, the Supreme Court ruled that there was no factual dispute and that the suicide “must be deemed a superseding intervening event,” and summary judgment was affirmed.

Justice Sharon Lee wrote a lengthy dissent here, opining that the estate “should have its day in court.” She wrote:

He was fully aware of [decedent’s] instability, their ‘rocky’ relationship, her suicide attempt, the lack of timely follow-up care, the lack of notice to her psychiatrist of the suicide attempt, her on-going depression, and the potential restriction of her parenting time that caused [decedent] to become ‘further emotionally distraught’ shortly before her suicide. Yet [defendant] brought a gun into his home and showed it to [decedent], while on the same day telling her he was seeing another woman. [Defendant] failed to secure the gun, even though he knew that a person with symptoms of depression or anxiety is at an increased risk of suicide, and that the likelihood of a successful suicide attempt is much higher with a gun than by pills or other means. …[T]here are disputed questions of material fact about the foreseeability of [decedent’s] suicide.

Any attorney litigating a suicide-related negligence case needs to read this case carefully.