A few days ago I reported (here) that the Illinois Appellate Court recently decided a case on whether a decedent’s conduct in committing suicide constitutes a superseding cause that defeats a plaintiff’s cause of action for wrongful death. The case is called O’Donnell v. Bailey & Associates Counseling.
I mentioned that I was interested in the subject because Illinois is one of those states that has decided in the past that a suicide is an unforeseeable, and therefore superseding, intervening cause “as a matter of law.” I finally had a chance to read the opinion, and, oh my! What a mess!
If you want a course on how to make something much more difficult and confusing than it needs to be read this case and, more importantly, the state supreme court's cases it cites. By working through a word salad based on statements about “general rules” that apply “as a matter of law” but that end up having exceptions, which means they should not always apply a matter of law, and ignoring basic rules of tort law, in the end the court manages to decide the case by going against the language of precedent cases, while stating that it is following precedent, which is actually correct, because the precedent cases do not say what the court has been saying they said since they were decided.
Did you get all that? Let’s see if we can figure it out. And let’s start at the very beginning.
As you probably know, the prevailing approach to the issue of proximate cause is the so-called scope of the risk analysis (adopted by the Restatement) the main ingredient of which is the notion of foreseeability. According to this analysis, a defendant’s conduct is a proximate cause of the injury if the injury is a foreseeable consequence of the risk created by the negligent conduct. But you also probably know that this long version of the analysis is usually shortened to simply asking whether the injury is foreseeable. If the plaintiff can convince that the injury is foreseeable given the conduct of the defendant, the plaintiff will meet the element of proximate cause.
Now, the defendant, of course, can then argue that the injury is not foreseeable and one way to do that is to argue that an intervening event which was not foreseeable interrupted, and broke, the chain of causation. Thus, if the defendant can convince that the intervening event was not foreseeable, the defendant will be able to say that the plaintiff can’t establish the element of proximate cause.
This is the basic tort law principle at issue in suicide cases. In an attempt to defeat the plaintiff’s prima facie case, the defendant will always argue that the conduct of the decedent, ie, committing suicide, was unforeseeable.
Now here is where things start to get complicated. Usually, what is or is not foreseeable is a matter of fact to be decided by the jury, but a number of jurisdictions have held that a suicide is unforeseeable “as a matter of law.”
This conclusion is based on the notion that committing suicide goes so against human nature that it is inconceivable that someone would decide to do so and therefore it should always be thought of as unforeseeable. The problem with this is that this view is not realistic. Suicide is common. In fact, it is one of the top leading causes of death among juveniles in the US. And, if you take into account mental health issues, and known medication side effects, it is unrealistic to say that suicide is necessarily unforeseeable. In many cases, it can fairly be argued (and proven) that it was totally foreseeable.
Now let’s talk about the state of the law in Illinois.
In Illinois, the Supreme Court decided long ago that a suicide is unforeseeable “as a matter of law.” Yet, in 2015, it decided a case called Turcios v. DeBruler Co. in which, probably without realizing it, the court twisted the analysis into such a pretzel that it ended up exactly where it said it wouldn’t. I wrote about this back when the case was decided and you can read my comment here, but let me repeat the basics.
In Turcios, the court reiterated its precedent position that a suicide is unforeseeable as a matter of law, but then referred to that position as “the general rule” and recognized the possibility that a plaintiff could support a claim if the plaintiff could “plead facts demonstrating that the suicide was foreseeable, i.e., that it was a likely result of the defendant’s conduct.”
Hmm. Does that sound familiar? If not, go up an re-read the paragraphs where I explain the basic tort law principle of proximate cause.
What does this mean? It means that in 2015, the court, for all practical purposes abandoned the position that a suicide is unforeseeable as a matter of law and changed its approach to asking whether the suicide is foreseeable and (as always) putting the burden of proof of the plaintiff to argue facts to support the argument that the suicide was foreseeable.
And what is that if not simply saying what we know from Torts 101: that knowing the defendant will argue that the intervening event (the suicide) was unforeseeable, the plaintiff will have to argue and prove that the intervening event was foreseeable.
Given this decision, it makes no sense to continue to say that a suicide is unforeseeable as a matter of law. But the court keeps doing it; and tries to make sense of it by claiming that that is “the general rule” but that there are exceptions to the general rule. That contradicts its decisions, and more importantly, its logic. It makes no sense.
Enter the new case, decided just a few days ago, which makes everything even more confusing but oddly reaches the correct result.
In this case, the Appellate Court discusses the possibility of imposing liability on a medical professional for alleged negligent conduct toward an outpatient who later committed suicide. The plaintiffs, as you would expect, argued that the defendant’s conduct resulted in the decedent’s death and the defendant argued that the act of committing suicide was an unforeseeable and, therefore, superseding cause.
Following precedent, the lower court dismissed the claim holding that the suicide was unforeseeable as a matter of law. But the Appellate Court then reversed, once again contradicting the supposed precedent - but which makes sense now that we understand that precedent was abandoned (only the Supreme Court did not really say so when it happened).
This result, on the one hand, add to the confusion about the issue. Yet, on the other hand, the good news is that the Appellate Court actually used the correct analysis and reached the correct result. It found that a suicide is not necessarily unforeseeable as a matter of law and, refuting an argument by the defendant, that it does not matter whether the decedent was a patient or an outpatient.
Citing approvingly a number of decisions from other jurisdictions, the court agreed with one of them in that “[i]f those who are caring for and treating mentally disturbed patients know of facts from which they could reasonably conclude that the patients would be likely to inflict harm on themselves in the absence of preventative measures, then those caretakers must use reasonable care under the circumstances to prevent such harm from occurring.”
However, the full analysis should be much more simple than the explanation given by the court (and the Supreme Court’s precedent cases). First, the plaintiff has the burden to show proximate cause, and if the defendant argues that an intervening event is superseding, the court must determine whether that intervening event is foreseeable. And, second, if the alleged intervening event is a suicide, it must be determined if that unfortunate event was foreseeable under the circumstances, which is not a question decided “as a matter of law.”
Now we sit and wait to see if the case will be appealed to the Illinois Supreme Court. If it is, let’s hope the Court admits that the state of the law is a mess and takes the chance to clean it up. Given the mess they have created up to this point, I am not too hopeful, but we’ll see. It is a new year and maybe good things will come.
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