McLaughlin v. Sullivan

• Decision Date: 09 May 1983
• Docket Number: No. 82-301,82-301
• Citation: 123 N.H. 335,461 A.2d 123
• Parties: , 41 A.L.R.4th 343 Sheila McLAUGHLIN, Administratrix of the Estate of Lawrence McLaughlin v. Dorothy SULLIVAN.
• Court: New Hampshire Supreme Court

Page 123

461 A.2d 123

123 N.H. 335, 41 A.L.R.4th 343

Sheila McLAUGHLIN, Administratrix of the Estate of Lawrence McLaughlin v. Dorothy SULLIVAN.

No. 82-301.

Supreme Court of New Hampshire.

May 9, 1983.

Holland & Aivalikles, Nashua (William E. Aivalikles, Nashua, on brief, and Francis G. Holland, Nashua, orally), for plaintiff.

Devine, Millimet, Stahl & Branch P.A., Manchester (Edward B. Mulligan, IV, Manchester, on brief and orally), for defendant.

BROCK, Justice.

In this interlocutory appeal, we must determine whether an attorney may be held liable for the suicide of a client. We hold that an attorney may not be held liable, and reverse the decision of the Superior Court (Bean, J.) denying the defendant's motion to dismiss.

The underlying facts of the case are that in October 1979, the plaintiff's decedent, Lawrence W. McLaughlin, retained the defendant, Dorothy R. Sullivan, Esq., to defend him against certain criminal charges, specifically, burglary, possession of burglary tools, and two counts of the unauthorized possession of a controlled drug, which had been brought against him in Hillsborough County. Mr. McLaughlin was found guilty on all four charges after a jury trial in Superior Court (Goode, J.). Mr. McLaughlin was given a two-to-four-year sentence on the burglary charge and the remaining three charges were continued for sentencing. He was then transported to the county jail where, within twelve hours of his arrival, he committed suicide by hanging himself.

The plaintiff administratrix of Mr. McLaughlin's estate first filed an appeal in this court, seeking to overturn his convictions on the grounds of ineffective assistance of counsel. We dismissed the appeal because Mr. McLaughlin's death abated his right to appeal. The plaintiff then brought the present wrongful death action against Dorothy Sullivan, Esquire, claiming that Ms. Sullivan had negligently represented the decedent and that as a result of her legal malpractice, Mr. McLaughlin was wrongfully convicted, was incarcerated, and committed suicide. The plaintiff further claimed that Ms. Sullivan negligently failed to file motions requesting a stay of sentence and/or bail pending appeal, which the plaintiff alleges would have prevented her decedent's post-conviction incarceration and suicide while in jail.

The defendant filed a motion to dismiss the plaintiff's writ, alleging that even if she were found to have breached her duty to represent the decedent with adequate professional judgment and skill, such negligence was not the proximate cause of the decedent's suicide, and was not a reasonably foreseeable risk which could result from such a breach of duty. The superior court denied the motion, and the defendant appealed pursuant to RSA 491:17.

As a general rule, negligence actions seeking damages for the suicide of another will not lie because the act of suicide is considered a deliberate, intentional and intervening act which precludes a finding that a given defendant, in fact, is responsible for the harm. See Annot., 11 A.L.R.2d 751, 757 (1950); W. Prosser, Law of Torts § 44, at 280-81 (4th ed. 1971); see generally Schwartz, Civil Liability for Causing Suicide: A Synthesis of Law and Psychiatry, 24 Vand.L.Rev. 217 (1971); Comment, Civil Liability for Suicide: An Analysis of the Causation Issue 1978 Ariz.St.L.J. 573. In recent years, however, tort actions seeking damages for the suicide of another have been recognized under two exceptions to the general rule, namely, where the defendant is found to have actually caused the suicide, or where the defendant is found to have had a duty to prevent the suicide from occurring. See Comment, Civil Liability for Causing or Failing to Prevent Suicide, 12 Loy.L.A.L.Rev. 967, 968 (1979); Annot., 11 A.L.R.2d at 756.

The first exception involves cases where a tortious act is found to have caused a mental condition in the decedent that proximately resulted in an uncontrollable impulse to commit suicide, or prevented the decedent from realizing the nature of his act. See W. Prosser, supra § 44 at 280-81; Comment, supra, 12 Loy.L.A.L.Rev. at 975-83; Schwartz, supra, at 219-36; Annot., 11 A.L.R.2d at 756. Such cases typically involve the infliction of severe physical injury, or, in rare cases, the intentional infliction of severe mental or emotional injury through wrongful accusation, false arrest or torture. Comment, supra, 1978 Ariz.St.L.J. at 576; Annot., 11 A.L.R.2d at 756-74.

This exception also encompasses cases in which a statute prohibiting the sale of certain drugs or liquor was violated by the defendant. In these cases, liability arises both by virtue of direct causation (the drugs or alcohol foreseeably caused a frenzy or uncontrollable impulse to commit suicide), and also out of a breach of what is described as a duty to refrain from knowingly making available the actual means of an individual's self-destruction. Examples of statutes under which liability is imposed are so-called "dram shop acts," and acts regulating the sale of narcotics by pharmacists. Annot., 11 A.L.R.2d at 756, 763-75; Cf. Schwartz, supra, at 237-45 (treating such cases as belonging under the "duty to prevent" exception).

The second exception focuses on the existence of a specific duty of care to prevent suicide. This duty has been imposed as a matter of law, Comment, supra, 12 Loy.L.A.L.Rev. at 987, on essentially two classes of defendants, both of whom are held to have a special relationship with the suicidal individual. The typical defendant in such cases "is someone who has a duty of custodial care, is in a position to know about suicide potential, and fails to take measures to prevent suicide from occurring." Comment, 1978 Ariz.St.L.J. at 581. Specifically, this duty has been imposed on: (1) institutions such as jails, hospitals and reform schools, having actual physical custody of and control over persons; see Note, Custodial Suicide Cases: An Analytical Approach to Determine Liability for Wrongful Death, 62 B.U.L.Rev. 177 (1982); Schwartz supra, at 245-55; Annot., 11 A.L.R.2d at 775-802; Annot., 79 A.L.R.3d 1210 (1977); and (2) persons or institutions such as mental hospitals, psychiatrists and other mental-health trained professionals, deemed to have a special training and expertise enabling them to detect mental illness and/or the potential for suicide, and which have the power or control necessary to prevent that suicide. See Comment, 1978 Ariz.St.L.J. at 581-83; Comment, supra 12 Loy.L.A.L.Rev. at 987-995; Schwartz, supra, at 245-55; Annot., 11 A.L.R.2d at 775-802, Annot., 17 A.L.R.4th 1128 (1982).

As detailed below, although the plaintiff's allegations are not clearly expressed, we will consider her writ as raising both a direct causation theory of negligence of the kind described in the first exception, and a claim under the second exception, that the decedent breached a duty she had to prevent the decedent's suicide.

The plaintiff has alleged that the defendant's legal representation of the decedent was negligent, thereby causing his wrongful conviction, incarceration, and death by suicide, in the sense that "but for" the defendant's negligence, the decedent would not have died. The plaintiff has also asserted that the defendant had access to a psychological evaluation of the decedent attached to a probation department report, in which, she contends, the possibility of his suicide in the event of his incarceration was discussed. The plaintiff argues that the decedent's suicide was therefore foreseeable, and that the defendant breached a duty she had to file certain post-conviction motions which would have prevented his incarceration and subsequent suicide.

It remains unclear, however, whether the duty thus asserted to have been breached is viewed by the plaintiff as having been a specific, quasi-independent duty to prevent the decedent's "foreseeable" suicide, or whether the plaintiff is simply arguing that the defendant's failure to file these motions was part of her overall professional negligence. We have treated this as an independent argument involving a claimed duty to prevent suicide, in order to give the plaintiff the benefit of an analysis under both "prongs" of the case law on civil liability for suicide.

Our review of the case law and scholarly commentary persuades us that the professional negligence complained of in this case could never be fairly viewed as fitting within the first exception to the general rule that suicide constitutes an independent intervening cause precluding liability on the part of a defendant. As discussed above, that exception is very narrow, allowing recovery in tort only where the defendant has caused a severe physical injury to the victim which leads to extraordinary mental incapacity resulting in suicide, see Orcutt v. Spokane County, 58 Wash.2d 846, 364 P.2d 1102 (1961); or where the defendant intentionally and maliciously has tormented the victim into a suicidal state, see Cauverien v. De Metz, 20 Misc.2d 144, 188 N.Y.S.2d 627 (N.Y.Sup.Ct.1959). Essential and central to such cases is either the actual infliction of severe bodily injury by the defendant, or the willful infliction of extreme emotional distress, neither of which could ever be viewed as characterizing the negligent performance of the practice of law.

If we turn to the second recognized exception involving a duty to prevent suicide, we conclude that the plaintiff again has failed to show sufficient similarities between the defendant in this case and either of the two classes of individuals which have been held to have such a duty of care. We find fundamentally characteristic of these two types of defendants a pre-existing duty of care and protection which is imposed either because an institution has actual physical custody of, and substantial or total control over, an individual, (see, e.g., McBride v. State, 52 Misc.2d...