McPeake v. William T. Cannon, Esquire, P.C.

• Citation: 553 A.2d 439,381 Pa.Super. 227
• Parties: , 57 USLW 2496 Charlotte M. McPEAKE, as Administratrix of the Estate of Robert T. McPeake, Deceased and Charlotte M. McPeake, on Behalf of Erina Jamie McPeake, a Minor by Charlotte and Robert T. McPeake and Charlotte M. McPeake in Her Own Right, Appellant v. WILLIAM T. CANNON, ESQUIRE, P.C.
• Decision Date: 26 January 1989
• Court: Superior Court of Pennsylvania

Page 439

553 A.2d 439

381 Pa.Super. 227, 57 USLW 2496

Charlotte M. McPEAKE, as Administratrix of the Estate of Robert T. McPeake, Deceased and Charlotte M. McPeake, on Behalf of Erina Jamie McPeake, a Minor by Charlotte and Robert T. McPeake and Charlotte M. McPeake in Her Own Right, Appellant v. WILLIAM T. CANNON, ESQUIRE, P.C.

Superior Court of Pennsylvania.

Argued Sept. 1, 1988.

Filed Jan. 26, 1989.

Alberto Roldan, Harrisburg, for appellant.

Jeffrey B. Albert, Philadelphia, for appellee.

Before BROSKY, KELLY and HOFFMAN, JJ.

HOFFMAN, Judge.

This appeal arises from the order of August 26, 1987, granting appellee's preliminary objections and dismissing appellants' complaint with prejudice. Appellants contend that the trial court erred in granting appellee's preliminary objections because the complaint set forth a valid claim of legal malpractice. For the reasons that follow, we affirm the order below.

On January 11, 1985, appellants' decedent was arrested for burglary, rape, indecent assault, corrupting the morals of a minor, and possession of an instrument of crime. Decedent retained the legal services of appellee to represent him on the above-mentioned charges. On August 18, 1986, after a jury found decedent guilty on all counts, he suddenly jumped from a closed fifth floor window of the courtroom and killed himself. Appellants filed a legal malpractice, wrongful death and survivors' action against appellee, alleging that appellee's negligent representation of decedent caused his fatal leap from the courtroom window after the jury found him guilty of rape. Appellants averred in their complaint eighteen instances of alleged negligent conduct on the part of appellee which led to decedent's conviction. Appellee filed preliminary objections in the nature of a demurrer.¹ The court granted appellee's preliminary objections and the complaint was dismissed with prejudice. This timely appeal followed.

A preliminary objection in the nature of a demurrer is not to be sustained and the complaint dismissed unless the law says with certainty that no recovery is possible. Hoffman v. Misericordia Hosp. of Phila., 439 Pa. 501, 267 A.2d 867 (1970). Therefore, if any theory of law will support the claim raised by the [complaint], a dismissal is improper....

For the purpose of our review of a dismissal on the pleadings in the nature of a demurrer, the averments [in the complaint], except to the extent that they constitute conclusions of law, must be taken as true, Freezer Storage, Inc. v. Armstrong Cork Co., 476 Pa. 270, 382 A.2d 715 (1978)....

Cianfrani v. Commonwealth, State Employees' Retirement Bd., 505 Pa. 294, 297, 479 A.2d 468, 469 (1984). See also Muhammad v. Strassburger, McKenna, Messer, Shilobod and Gutnick, 374 Pa.Super. 613, 615, 543 A.2d 1138, 1139 (1988); Aetna Electroplating Co. v. Jenkins, 335 Pa.Super. 283, 285, 484 A.2d 134, 135 (1984).

I. Background: Causes of Action based on Suicide generally

The gravamen of appellants' complaint is that appellee's negligent representation during trial amounted to legal malpractice, and caused decedent to commit suicide. Generally, suicide has not been recognized as a legitimate basis for recovery in wrongful death cases. This is so because suicide constitutes an independent intervening act so extraordinary as not to have been reasonably foreseeable by the original tortfeasor. See Bleman v. Gold, 431 Pa. 348, 246 A.2d 376 (1968); Mike v. Borough of Aliquippa, 279 Pa.Super. 382, 421 A.2d 251 (1980). See also Annot., 41 A.L.R.4th 351, 352 (1985); 11 A.L.R.2d 751, 757 (1950); W. Prosser, Law of Torts § 44, at 280-81 (4th ed. 1971). There are, however, limited exceptions to this rule. For example, Pennsylvania has recognized suicide as a legitimate basis for wrongful death claims involving hospitals, mental health institutions and mental health professionals, where there is a custodial relationship and the defendant has a recognized duty of care towards the decedent. See Simmons v. Saint Clair Memorial Hospital, 332 Pa.Super. 444, 481 A.2d 870 (1984); Smith v. United States, 437 F.Supp. 1004 (E.D.Pa.1977). In other cases, where the defendant was not associated with a hospital or mental health institution, courts have required both a clear showing of a duty to prevent the decedent's suicide and a direct causal connection between the alleged negligence and the suicide. See Malloy v. Girard Bank, 292 Pa.Super. 34, 436 A.2d 991 (1981); Freedman v. City of Allentown, 651 F.Supp. 1046 (E.D.Pa.1987). A third line of cases which have recognized suicide as a basis for recovery involve suits brought under the worker's compensation statute. See Globe Security Sys. Co. v. Workmen's Comp. App. Bd, 103 Pa.Commw. 384, 520 A.2d 545 (1987); SCM Corp. v. Workmen's Comp. App. Bd. (Schulman), 102 Pa.Commw. 536, 518 A.2d 887 (1986). Under this statute, compensation will be granted if a suicide was caused by pain, depression or despair resulting from a work-related injury so severe as to override rational judgment. See Globe Security Sys. Co. v. Workmen's Comp. Bd., supra; SCM Corp. v. Workmen's Comp. Bd. (Schulman), supra; But see McCoy v. Workmen's Comp. App. Bd., 102 Pa.Commw. 436, 518 A.2d 883 (1986).

II. Legal Malpractice

On review, the issue presented for us is whether an attorney may be held liable for his client's suicide that has allegedly resulted from the attorney's negligent representation. More specifically, the question is whether an attorney's duty of representation extends to protecting a client from his own suicidal tendencies. The issue is one of first impression in Pennsylvania.

A.

Appellants proceed under a theory of legal malpractice. As a general matter, the plaintiff in a legal malpractice action must be prepared to show:

1. the employment of the attorney or other basis for duty;

2. the failure of the attorney to exercise ordinary skill and knowledge;

3. that such negligence was the proximate cause of the plaintiff's injuries.

Schenkel v. Monheit, 266 Pa.Super. 396, 398, 405 A.2d 493, 494 (1979) (quoting R. Mallen & V. Levit, Legal Malpractice 123 (1977)) (footnote omitted). These elements must be proven by a preponderance of the evidence. Schenkel v. Monheit, supra. An attorney will be found to have been negligent if he or she has failed to use that ordinary skill, knowledge, and care which would normally be possessed and exercised under the circumstances by members of the legal profession. See Restatement of Torts, § 299A(2) (1988 edition); Duke v. Anderson, 275 Pa.Super. 65, 418 A.2d 613 (1980). Once the plaintiff has established that a duty of care is breached, the plaintiff must still establish a causal connection between the defendant's negligent conduct and the plaintiff's injuries. Hamil v. Bashline, 481 Pa. 256, 265, 392 A.2d 1280, 1285 (1978). "Proximate" or "legal" causation in turn is defined as "[t]hat which, in a natural and continuous sequence, unbroken by any sufficient intervening cause, produces injury, and without which the result would not have occurred." Wisniewski v. Great Atlantic and Pacific Tea Company, 226 Pa.Super. 574, 582, 323 A.2d 744, 748 (1974). Moreover, Prosser has noted that the question of "proximate" causation ... becomes essentially a question of whether the policy of the law will extend the responsibility for the conduct to the consequences which have in fact occurred. Quite often this has been stated, and properly so, as an issue of whether the defendant is under any duty to the plaintiff, or whether his duty includes protection against such consequences.

W. Prosser, supra § 42, at 244. Thus, a defendant will not be found to have had a duty to prevent a harm that was not a reasonably foreseeable result of the prior negligent conduct. The rationale behind this rule is that it would be unfair to impose a duty upon persons to prevent a harm that they could not foresee or avoid.

B.

Here, appellants assert that as a result of appellee's negligent representation decedent committed suicide. More specifically, appellants claim that decedent committed suicide while possessed by an uncontrollable insane frenzy brought on by the jury's verdict of guilty. Appellants further allege that appellee knew of decedent's emotional problems because they were manifested by the uncontrollable twitching of his limbs and his prior expressed intention to take his own life. Appellants therefore argue that decedent's suicide was foreseeable, and that appellee's negligent legal representation was the direct cause. The trial court, in sustaining appellee's preliminary objections, stated that:

The court concludes as a matter of law, assuming the malpractice or negligence of [appellee] is true as alleged, that jumping out of a window is not foreseeable and therefore the alleged actions or omissions of [appellee] are not the proximate or legal cause of [decedent's] injuries. The court will not elaborate further as this issue is a matter of common sense.

Trial Court Opinion at 1.

Our research has revealed only one reported case which deals directly with suicide as the alleged result of legal malpractice. In McLaughlin v. Sullivan, 123 N.H. 335, 461 A.2d 123 (1983), the New Hampshire Supreme Court rejected a wrongful death claim brought against an attorney based upon his client's suicide following the client's conviction in a criminal case. The issue presented in McLaughlin, as here, was whether, as a matter of law, legal malpractice could be a legal or proximate cause of suicide. Id. at 341, 461 A.2d at 127. The Court held that a lawyer's duty of representation does not extend to protecting a client from his suicidal tendencies, and thus, proximate causation could not be established as a matter of law. Id. We agree with the McLaughlin court and adopt its holding as a matter of Pennsylvania law.

The duty of an attorney in a criminal case is to provide competent legal representation to his client. If an attorney does not provide...