Andreasen v. Klein, Glasser, Park & Lowe, P.L.
| Decision Date | 22 June 2022 |
| Docket Number | 3D20-1498 |
| Parties | Andrew ANDREASEN, etc., Appellant, v. KLEIN, GLASSER, PARK & LOWE, P.L., etc., et al., Appellees. |
| Court | Florida District Court of Appeals |
Thomas J. Gruseck (West Palm Beach), for appellant.
Keller Landsberg, P.A., and Dena B. Sacharow and D. David Keller, (Fort Lauderdale), for appellees.
Before LOGUE, GORDO and BOKOR, JJ.
This appeal challenges the dismissal of a wrongful death complaint. In 2008, an uninsured motorist collided with a car driven by John Andreasen, rendering John permanently disabled.1 After several years of litigation against both his insurer (for allegedly failing to allow stacking of his uninsured motorist coverage) and his own former counsel (for allegedly failing to competently litigate his claims against the insurer and eventually allowing the claims to lapse), on March 10, 2019, John died by suicide.
Subsequently, John's brother, Andrew, in his capacity as the personal representative of John's estate, brought the underlying wrongful death and survival action against some of John's former attorneys. The complaint alleged negligence and legal malpractice as the proximate cause of John's death. Specifically, Andrew alleged that the attorneys’ failure to exercise reasonable care and professional skill in representing John caused a lapse of his stacking uninsured motorist coverage claims, prevented him from having the financial ability to pay for ongoing treatment and medication, and caused him to experience the pain and suffering that ultimately led him to commit suicide. The trial court dismissed the action with prejudice for failure to state a claim, finding that the attorneys owed John no legal duty to prevent his suicide and that the alleged malpractice was not the proximate cause of the death. This appeal followed.
We find that the complaint was properly dismissed because John's counsel did not have a legal duty to prevent his suicide. Our review of a dismissal for failure to state a cause of action is de novo.
See, e.g., Crawley-Kitzman v. Hernandez, 324 So. 3d 968, 974 (Fla. 3d DCA 2021). Dismissal of a complaint with prejudice is proper where the complaint has failed to state a cause of action and it conclusively appears that the complaint could not be amended to state a cause of action. Id. at 977.
To prevail on a wrongful death claim, the plaintiff must establish that the defendant caused the decedent's death through some wrongful act that would have entitled the decedent to bring an action on their own behalf if they had survived. § 768.19, Fla. Stat.; see also Toombs v. Alamo Rent-A-Car, Inc., 833 So. 2d 109, 111 (Fla. 2002). The complaint here was predicated on theories of negligence and legal malpractice, both of which require a showing that the injury was caused by the breach of a duty on the part of the defendant. See, e.g., Larson & Larson, P.A. v. TSE Indus., Inc., 22 So. 3d 36, 39 (Fla. 2009) (); Fla. Dep't of Corr. v. Abril, 969 So. 2d 201, 204 (Fla. 2007) ().
"As a general rule, ‘there is no liability for the suicide of another or for injuries sustained in a suicide attempt in the absence of a specific duty of care.’ " Kelley v. Beverly Hills Club Apartments, 68 So. 3d 954, 957 (Fla. 3d DCA 2011) (quoting in part Paddock v. Chacko, 522 So. 2d 410, 416 (Fla. 5th DCA 1988) ). While "[o]ne can assume such a duty by taking custody and control over another," a legal duty to prevent self-inflicted harm requires "more than just foreseeability alone"; rather, such person must "be in a position to control the risk." Surloff v. Regions Bank, 179 So. 3d 472, 475–76 (Fla. 4th DCA 2015) (quotation omitted) (affirming dismissal of wrongful death complaint alleging that bank caused decedent's overdose death by informing decedent of loan denial despite knowledge of decedent's inability to process negative information; bank had no special relationship with decedent that would...
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