Schieszler v. Ferrum College, 7:02-CV-131.

Decision Date15 July 2002
Docket NumberNo. 7:02-CV-131.,7:02-CV-131.
Citation236 F.Supp.2d 602
PartiesLaverne F. SCHIESZLER, Personal Representative of the Estate of Michael W. Frentzel, Deceased. Plaintiff, v. FERRUM COLLEGE, a Virginia corporation, et al Defendants.
CourtU.S. District Court — Western District of Virginia

Arthur Patrick Strickland, Arthur P. Strickland, P.C., Roanoke, VA, Daniel R. Madock, Russell M. Kofoed, Barlow, Kobata & Denis, Chicago, IL, for plaintiff.

Joseph Aubrey Matthews, Jr., Jonnie L. Speight, Johnson, Ayers & Matthews, Roanoke, VA, for defendants.


KISER, Senior District Judge.

I. Background

This wrongful death suit arises out of the suicide of Michael Frentzel. At the time of his death, Frentzel was a freshman at Ferrum College. His first semester at college apparently was not an entirely happy experience. As a result of some undisclosed "disciplinary issues," Ferrum required Frentzel to comply with certain conditions before permitting him to continue his enrollment. Among these was the requirement that Frentzel enroll in anger management counseling before returning for spring semester.

Frentzel apparently complied with these conditions and returned to Ferrum for a second semester. On February 20, 2000, Frentzel had an argument with his girlfriend, Crystal. The campus police and the resident assistant at Frentzel's on-campus dormitory, Odessa Holley, responded and intervened. At around the same time, Frentzel sent a note to Crystal in which he indicated that he intended to hang himself with his belt. Holley and the campus police were shown the note. When they responded, they found Frentzel locked in his room. When they managed to get into his room, they found Frentzel with bruises on his head. He told them the bruises were self-inflicted. The campus police informed Ferrum's dean of student affairs, David Newcombe, about the incident. Newcombe responded by requiring Frentzel to sign a statement that he would not hurt himself. Newcombe then left Frentzel alone to go speak with Crystal.

Within the next few days, Frentzel wrote another note to a friend stating "tell Crystal I will always love her." The friend told Crystal who told the defendants. They refused to allow her to return to Frentzel's dormitory room. The defendants took no other action. Soon thereafter, Frentzel wrote yet another note stating "only God can help me now," which Crystal pressed upon the defendants. When the defendants visited Frentzel's room on February 23, 2002, they found that he had hung himself with his belt.

Frentzel's aunt and guardian, LaVerne Schieszler, was named the personal representative of his estate in Illinois. She filed a wrongful death suit against Ferrum College, Newcombe and Holley. The complaint alleges a single count of wrongful death pursuant to Virginia Code §§ 8.01-5 et seq. It avers that the defendants "knew or personally should have known that Frentzel was likely to attempt to hurt himself if not properly supervised," that they were "negligent by failing to take adequate precautions to insure that Frentzel did not hurt himself," and that Frentzel died as a result.

The defendants have jointly moved to dismiss the complaint, arguing that (1) the court lacks subject matter jurisdiction because the complaint does not allege diversity of citizenship between the parties; (2) the representative lacks capacity to sue under Fed.R.Civ.P. 17(b); (3) a claim for wrongful death will not lie because Frentzel's suicide was an unlawful act; (4) the defendants had no legal duty to take steps to prevent Frentzel from killing himself; and (5) the defendants' actions were not the cause of Frentzel's death. In response, Schieszler moved for leave to file an amended complaint that would cure the first ground for dismissal. The defendants objected, arguing that filing the proposed amended complaint would be futile because it fails to state a claim upon which relief can be granted.

II. Discussion
A. Motion for Leave to File an Amended Complaint and Motion to Dismiss for Failure to State a Claim

Federal Rule of Civil Procedure 15(a) states that leave to amend shall be "freely granted when justice so requires." Fed.R.Civ.P. 15(a). The prevailing view is that "[a] liberal, pro-amendment ethos dominates the intent and judicial construction of Rule 15(a)." 3 Moore's Federal Practice § 15.14[1] (3d ed.1997); see Ward Electronics Service, Inc. v. First Commercial Bank, 819 F.2d 496, 497 (4th Cir. 1987). "[T]o justify a denial of such leave [to amend], it must appear to the Court that the amendment is futile, offered in bad faith, prejudicial or otherwise contrary to the interests of justice." Roper v. County of Chesterfield, Virginia, 807 F.Supp. 1221, 1223 (E.D.Va.1992). The defendants' primary argument against allowing leave to amend is that the amendment will be futile because it fails to state a claim for wrongful death. Thus, the issue of whether the plaintiff has stated a claim for wrongful death will determine whether I accept the amended complaint. I will therefore address that issue first.

1. Dismissal Standard

Rule 12(b)(6) of the Federal Rules of Civil Procedure permits a party to move for dismissal of a claim for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). The function of motions to dismiss is to test the law governing the claims, not the facts which support them. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). Thus, I may only test the plaintiff's amended complaint for any legal deficiency, and must presume that all factual allegations in it are true. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Schatz v. Rosenberg, 943 F.2d 485, 489 (4th Cir.1991), cert. denied, 503 U.S. 936, 112 S.Ct. 1475, 117 L.Ed.2d 619 (1992). Furthermore, all reasonable inferences must be made in favor of the non-moving party, in this case, the plaintiff. See Johnson v. Mueller, 415 F.2d 354 (4th Cir.1969). I cannot dismiss any claim unless it appears beyond a doubt that the plaintiff could not recover under any set of facts which could be proven.

2. Stating a Claim for Wrongful Death
a. duty

In her claim for wrongful death, the plaintiff alleges that the defendants were negligent in failing to take adequate steps to prevent Frentzel from committing suicide. A cause of action for negligence will not lie unless there is a duty recognized by law. Chesapeake and Potomac Telephone v. Dowdy, 235 Va. 55, 61, 365 S.E.2d 751, 754 (1988) (quoting Trimyer v. Norfolk Tallow Co., 192 Va. 776, 780, 66 S.E.2d 441, 443 (1951)). In order to survive this motion to dismiss, the plaintiff must have alleged facts sufficient to support her claim that the defendants owed a legal duty to assist Frentzel.

Ordinarily, there is no affirmative duty to act to assist or protect another absent unusual circumstances, which justify imposing such an affirmative responsibility. Under Section 314A of the Restatement (Second) of Torts (1965), an affirmative duty to aid or protect will arise when a special relationship exists between the parties. Section 314A identifies a number of special relationships, including the relationship between a common carrier and its passengers, an innkeeper and his guests, a possessor of land and his invitees, and one who takes custody of another thereby depriving him of other assistance. The special relationships listed in the Restatement are not considered exclusive. Restatement (Second) of Torts § 314A cmt. b (1965) ("The relations listed are not intended to be exclusive.").

Virginia law similarly recognizes that a special relationship can give rise to a duty to take affirmative action to assist or protect another. Thompson v. Skate America, 261 Va. 121, 129, 540 S.E.2d 123, 127 (2001); Dudas v. Glenwood Golf Club, 261 Va. 133, 138, 540 S.E.2d 129, 132 (2001); Wright v. Webb, 234 Va. 527, 530, 362 S.E.2d 919, 922 (1987). Thompson, 261 Va. at 129, 540 S.E.2d 123. The Virginia Supreme Court has held that a special relationship exists as a matter of law between a common carrier and its passengers, an employer and his employees, an innkeeper and his guests and a business owner and his invitees. See Thompson v. Skate America, 261 Va. 121, 129, 540 S.E.2d 123, 127 (2001) (business owner-invitee); A.H. v. Rockingham Publishing Co., 255 Va. 216 220, 495 S.E.2d 482, 485 (1998) (employer-employee); Klingbeil Management Group Co. v. Vito, 233 Va. 445, 448, 357 S.E.2d 200, 201 (1987) ("Examples of such a special relationship include common carrier-passenger, business proprietor-invitee, and innkeeper-guest."). These are not the only relationships that will give rise to an affirmative duty to assist or protect. The Court also has recognized that a special relationship may exist between particular plaintiffs and defendants because of the particular factual circumstances in a given case. See Thompson, 261 Va. at 129, 540 S.E.2d at 127 ("[S]pecial relationships may exist between particular plaintiffs and defendants, either as a matter of law or because of the particular factual circumstances in a given case."); Delk v. Columbia/HCA Healthcare Corp., 259 Va. 125, 132, 523 S.E.2d 826, 830-31 (2000) (medical facility created de facto special relationship with its patient when it determined that she was in need of constant supervision and surveillance); Burdette v. Marks, 244 Va. 309, 312-13, 421 S.E.2d 419, 420-21 (1992)(special relationship existed between deputy and passerby which imposed legal duty upon deputy to render assistance to passerby and protect him from attack).

In Burdette v. Marks, 244 Va. 309, 421 S.E.2d 419 (1992), for example, the Court considered whether a special relationship existed between a police officer and a passerby such that the officer had a duty to protect the passerby from an attack. In determining whether such a special relationship existed, the Court "consider[ed] whether [the officer] could...

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