Jutzi-Johnson v. U.S.A.

• Decision Date: 04 September 2001
• Docket Number: No. 00-2411,00-2411
• Citation: 263 F.3d 753
• Parties: (7th Cir. 2001) Karen Jutzi-Johnson, as administrator of the estate of Robert Johnson, deceased, Plaintiff-Appellee, v. United States of America, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 753

263 F.3d 753 (7th Cir. 2001)

Karen Jutzi-Johnson, as administrator of the estate of Robert Johnson, deceased, Plaintiff-Appellee, v. United States of America, Defendant-Appellant.

No. 00-2411

In the United States Court of Appeals For the Seventh Circuit

Argued January 23, 2001

Decided September 4, 2001

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 96 C 5708--Charles P. Kocoras, Judge.

Before Posner, Easterbrook, and Ripple, Circuit Judges.

Posner, Circuit Judge.

Robert Johnson hanged himself in his cell in the Metropolitan Correctional Center, the federal jail in Chicago, where he had been held for six months awaiting trial for extortion. His estate brought this suit for damages against the United States under the Federal Torts Claim Act, 28 U.S.C. sec.sec. 1346(b), 2671-80, charging that the jail was negligent in failing to identify him as a suicide risk and take suitable preventive measures. The Act incorporates local law, id., sec. 1346(b), and so the question is the liability of the United States under the principles of Illinois tort law, though so far as bears on issues of liability in this case they are the general principles of Anglo-American tort law, not anything special to Illinois.

The district judge, after a bench trial, awarded the estate $1.8 million in damages, of which $1.6 million was intended to compensate for the pain and suffering that Johnson suffered during the period of several minutes in which he remained alive before strangling while hanging from the noose that he had made out of a bedsheet and suspended from an exposed pipe that ran beneath the ceiling of his cell. The other $200,000 in damages were for the loss to his family resulting from his death.

Although the initial psychological screening that Johnson like all new inmates underwent revealed no history of psychiatric disorders or suicide attempts and no suicidal thoughts, and although this was not his first spell of incarceration, he deteriorated markedly during his stay in the jail. He scratched and picked at sores on his body until they bled so copiously that they stained his clothes and bedsheets and were noticed by other inmates. One of the guards observed that Johnson was a loner, slept a lot during the day, seemed nervous, had poor hygiene, and had a lot of sores that bled; yet the guard did not think to refer Johnson to the medical or psychology department of the jail. Another inmate told at least one other member of the prison staff that Johnson had a nervous problem and might need an antidepressant, but nothing was done about this information either. The day before Johnson killed himself his cellmate importuned him to see a physician's assistant and filled out a sick-call form in which the cellmate stated: "Open sores all over body caused from nerves. Request to see a psychologist or psychiatrist." Johnson presented the form to the physician's assistant the next day, but she neglected to read it and when he told her his roommate was taking some kind of medication that he thought he should be taking as well she merely told him to make an appointment to see the jail psychologist. He did not do that, but instead hanged himself 12 hours later.

The government does not deny that the jail's staff was negligent in failing to discover that Johnson had some kind of nervous condition and to take steps to deal with it. The obsessive scratching and picking, in the context of a general pattern of abnormal behavior, should have alerted the staff to the fact that Johnson might have a psychiatric illness. The physician's assistant whom Johnson consulted should have read the sick-call form and had she done so she might well have sent him directly to the jail psychologist rather than relying on him to make an appointment to see the psychologist. But it was the plaintiff's burden to prove both that Johnson would not have committed suicide had the jail's staff acted responsibly, e.g., Beul v. ASSE Int'l, Inc., 233 F.3d 441, 445-47 (7th Cir. 2000); Merco Distributing Corp. v.Commercial Police Alarm Co., 267 N.W.2d 652 (Wis. 1978); Guthrie v. American Protection Industries, 206 Cal. Rptr. 834, 836 (Cal. App. 1984); Vastola v. Connecticut Protective System, Inc., 47 A.2d 844, 845 (Conn. 1946), and that his suicide was a foreseeable as well as actual consequence of the staff's negligence.

The issue of causation is doctrinally straightforward; not so the issue of the foreseeability of suicide. When failure to prevent a suicide is claimed to be negligent, the issue of foreseeability is analyzed under the rubric of "supervening cause" and the general rule is that the negligent actor is not liable for the victim's decision to kill himself. The suicide is said to be a supervening cause of the victim's loss of his life, breaking the chain of responsibility that would otherwise link the loss to the negligent act. E.g., Beul v. ASSE Int'l, Inc., supra, 233 F.3d at 447; McMahon v. St. Croix Falls School District, 596 N.W.2d 875, 879 (Wis. App. 1999); Wyke v. Polk County School Board, 129 F.3d 560, 574-75 (11th Cir. 1997); Bruzga v. PMR Architects, P.C., 693 A.2d 401 (N.H. 1997); Edwards v. Tardif, 692 A.2d 1266, 1269 (Conn. 1997); W. Page Keeton et al., Prosser and Keeton on the Law of Torts sec. 44, p. 311 (5th ed. 1984). Of course this is just a conclusion, not reasoning; but it is a conclusion sustained by reasoning about the unforeseeability of most suicides and the role of foreseeability in determining tort liability. If an employer refuses an employee's request for a raise, the latter may respond by killing himself, and yet the employer even if somehow negligent in failing to give the employee the raise would not be legally responsible for the death, just as if through the carelessness of the driver a truck spilled a toxic substance and a passerby scraped it up and poisoned his mother-in-law with it the driver would not be liable to the mother- in-law's estate; the son-in-law's criminal act would be deemed a supervening cause. See Rowe v. State Bank of Lombard, 531 N.E.2d 1358, 1361 (Ill. 1988); Giebel v. Richards, 591 N.W.2d 901 (Wis. App. 1999); Henry v. Merck & Co., 877 F.2d 1489, 1494- 97 (10th Cir. 1989); Shelton v. Board of Regents, 320 N.W.2d 748, 752-53 (Neb. 1982).

A person is not liable for such improbable consequences of negligent activity as could hardly figure in his deciding how careful he should be. Liability in such circumstances would serve no deterrent, no regulatory purpose; it would not alter behavior and increase safety. Nothing would be gained by imposing liability in such a case but compensation, and compensation can be obtained more cheaply by insurance. But by the same token the doctrine of supervening cause is not applicable when the duty of care claimed to have been violated is precisely a duty to protect against ordinarily unforeseeable conduct. A risk unforeseeable to an ordinary person is foreseeable to a specialist who assumes a duty to prevent the risk from materializing. The duty is a recognition that the unforeseeable has become foreseeable to the relevant community. And so a hospital that fails to maintain a careful watch over patients known to be suicidal is not excused by the doctrine of supervening cause from liability for a suicide, e.g., DeMontiney v. Desert Manor Convalescent Center, 695 P.2d 255, 259-60 (Ariz. 1985), any more than a zoo can escape liability for allowing a tiger to escape and maul people on the ground that the tiger is the supervening cause of the mauling. City of Mangum v. Brownlee, 75 P.2d 174 (Okla. 1938); see also Scorza v. Martinez, 683 So. 2d 1115, 1117 (Fla. App. 1996); Behrens v. Bertram Mills Circus, Ltd., [1957] 2 Q.B. 1, 1 All E.R. 583 (1957). In both cases there is a foreseeable, in the sense of probable, hazard which precautions can and should be taken in order to lessen. So we may set the language of supervening cause to one side and ask simply whether Johnson's suicide was a foreseeable consequence of the negligence of his jailers in responding ineffectually to his abnormal behavior.

But first we should consider whether there was any causal relation between that negligence and the suicide. We think not. Johnson did not commit suicide because he had sores on his body. As nearly as can be reconstructed from the evidence, he committed suicide because he was upset about being in jail, separated from his family (including a daughter born while he was in jail) and facing a prison term if he was convicted. The scratching and the suicide were the consequences of an underlying unhappiness. Nothing the jail's staff could have done would have alleviated Johnson's concerns about separation and imprisonment. They were inherent in his situation. True, had the jail's psychologist interviewed him, Johnson might have expressed suicidal thoughts and in that event the jail would doubtless have placed him on suicide watch and thereby prevented him from killing himself. (At least it would have moved him out of a cell that, because of the exposed pipe near the ceiling, made it easy for an inmate to hang himself.) "Might" is the operative word. Johnson had no history of psychiatric illness and had not revealed any suicidal ideation at his intake exam. Until nudged by his roommate to visit the physician's assistant he had made no effort to contact the medical (including psychiatric) personnel of the jail. It is sheer conjecture that an interview with the jail psychologist would have produced sufficient information to have enabled the psychologist to infer that Johnson was a suicide risk and place him on suicide watch. The psychologist would have noticed Johnson's sores--would even, we may assume, have pronounced him or his behavior bizarre. But bizarre behavior and suicidal behavior are different, and there is no evidence that suicidal tendencies can be inferred from the kind of behavior that Johnson exhibited.

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