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Torts, wrongful-death claims and suicide

Chicago Daily Law Bulletin July 22, 2014

By Colin H. Dunn

Normally, when an individual commits suicide, his or her death cannot provide the basis for a wrongful-death or survival claim. The rationale for this rule is that the decedent’s act is an “independent intervening event that the tortfeasor cannot be expected to foresee” as a matter of law.

See Luss v. Village of Forest Park, 377 Ill.App.3d 318, 332–33 (2007) (wrongful-death claim against store was barred due to suicide by the decedent-shoplifter in police custody) and Crumpton v. Walgreen Co., 375 Ill.App.3d 73, 79 (2007).

In sum, the “suicide or attempted suicide is not a natural or probable result of a defendant’s negligence.” Stasiof v. Chicago Hoist & Body Co., 50 Ill.App.2d 115, 122 (1964).

But, like most rules, there are exceptions. For instance, when the injured party becomes insane or bereft of reason due to the tortfeasor’s conduct and, while in that state, commits suicide. Or when the suicide is due to psychiatric malpractice, i.e., the doctor’s failure to properly supervise or carefully protect a patient from inflicting self-harm. See, e.g., Pietrucha v. Grant Hospital, 447 F.2d 1029, 1034 (7th Cir.1971) (“There is a substantial difference between holding one liable to foresee the suicide of a person sane when injured who later commits suicide and holding a hospital liable where it admits a psychiatric patient with known suicidal tendencies”); Winger v. Franciscan Medical Center, 299 Ill.App.3d 364, 371-73 (1998) (finding the rule did not apply where the decedent sought the services of the psychiatrist to treat and cure his condition).

Recently, the 2nd District Appellate Court considered whether another exception existed: where the wrongful-death claim and survival action are premised on the defendant’s intentional infliction of emotional distress that led to the decedent committing suicide. Turcios v. DeBruler Co., 2014 IL App (2d) 130331.

In Turcios, the plaintiff, her husband and their three children lived in an apartment located in a complex in far north suburban Park City. Less than a month after moving in, they received a notice from the defendant that the lease was being terminated, they were being evicted and they had 30 days to vacate the apartment.

The family attempted to pay the rent, but the defendant declined to accept it. The defendant’s agent met with the family and noted that they were “experiencing depression, anxiety and anger over the matter,” and that they “were fatigued from lack of sleep.” When the defendant’s attempts to coax the family to leave were rejected, it began demolishing the building while they were still living there. Two days later, the husband committed suicide.

The circuit court dismissed with prejudice the wrongful-death and survival action counts, finding “no cause of action for wrongful death via suicide, or survival claims” under Illinois law.

The 2nd District reversed.

The court recognized the general rule noted above. But the plaintiffs had alleged that the defendant’s intentional (as opposed to negligent) conduct caused the decedent’s emotional distress that led to his committing suicide, and the court noted that several cases from foreign jurisdictions found that distinction mattered. See, e.g., Clift v. Narragansett Television L.P., 688 A.2d 805, 812 (R.I. 1996); Mayer v. Town of Hampton, 497 A.2d 1206, 1209–10 (N.H. 1985); R.D. v. W.H., 875 P.2d 26, 31 (Wyo. 1994); Tate v. Canonica, 5 Cal.Rptr. 28, 36 (Cal.Dist.Ct.App. 1960); Rowe v. Marder, 750 F.Supp. 718, 723–24 (W.D.Pa.1990); North Shore Pharmacy Services Inc. v. Breslin Associates Consulting LLC, 491 F.Supp.2d 111, 134 (D.Mass. 2007); Kimberlin v. DeLong, 637 N.E.2d 121, 126 (Ind.1994); Collins v. Village of Woodridge, 96 F.Supp.2d 744 (N.D.Ill. 2000).

(“Neither side has cited any cases addressing whether the same causation analysis applies in intentional tort cases. In fact, the rule appears to be different in such cases: The tort victim’s suicide generally is not considered a supervening cause, at least where the plaintiff can demonstrate that the defendant’s intentional conduct caused severe emotional distress that was a substantial factor in bringing about the suicide”); but see Epelbaum v. Elf Atochem, North America Inc., 40 F.Supp.2d 429 (E.D.Ky. 1999).

The court noted that a rule that bars a negligence-based claim should not necessarily apply in the context of an intentional tort. For instance, the nature of the damages are different; though punitive damages aren’t recoverable for the intentional infliction of emotional distress ( O’Neill v. Gallant Insurance Co., 329 Ill.App.3d 1166, 1179 (2002)), “[s]ince the outrageous quality of the defendant’s conduct forms the basis of the action, the rendition of compensatory damages will be sufficiently punitive” ( Knierim v. Izzo, 22 Ill.2d 73, 88 (1961)).

Moreover, the doctrine of contributory negligence does not apply when a defendant commits an intentional tort. See Poole v. City of Rolling Meadows, 167 Ill.2d 41, 48 (1995) (finding a jury is “precluded from reducing a defendant’s damages by a plaintiff’s contributory negligence if the defendant’s willful and wanton misconduct was intentional”).

Since contributory negligence is a species of intervening cause, the intervening-cause analysis (which is the basic rationale for the general rule) isn’t applicable when an intentional tort is at issue. Turcios, 2014 IL App (2d) 130331, ¶ 25. The court found “little reason,” therefore, “to engage in an analysis regarding the decedent’s suicide that is premised in notions of intervening cause.” Id.

The court noted that nowhere in the Restatement that sets out the elements of the intentional infliction of emotional distress tort (Restatement (Second) of Torts §46 (1965)) is there any mention of legal cause, foreseeability or intervening events. Liability is instead based on a defendant intentionally or recklessly causing emotional distress. And the tortfeasor is liable for not only the emotional distress itself but also any “bodily harm to the other [that] results from it.”

The court also rejected the defendant’s argument that legal cause (i.e., “foreseeability of the type of harm a reasonable person would expect from his or her conduct”) acts as a limitation on liability for both intentional and negligence tort. The court agreed that, in the context of a claim of intentional infliction of emotional distress, the plaintiff must show that the defendant’s conduct proximately caused the plaintiff’s emotional distress. But the court did not agree that the plaintiff was required to also “show that all resulting and compensable damages were proximately caused by the defendant.” Turcios, 2014 IL App (2d) 130331, ¶ 35.

Therefore, the court declined to extend the rule to the tort of intentional infliction of emotional distress.

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