After two in-school attempts to kill

LEADING QUESTIONS Student Suicide: Could You Be Held Liable? Suicide among students is tragic, and litigation against schools that might have prevented such tragedies is on the rise. How can principals protect themselves, their students, and their schools from being victims? BY KELLEY R. TAYLOR, ESQ. After two in-school attempts to kill himself, a 13-year-old boy commits suicide at his Florida home, and a court finds the school district liable for failing to inform the boy s mother about his attempts. A Maryland counselor fails to warn a student s parents about the student s suicide threats. Following the student s suicide, the court finds the counselor guilty of negligence. A school district in Washington State reaches an out-of-court settlement of $690,000 with parents of a high school student who committed suicide. Such headlines as these are becoming more frequent, causing school leaders to take special notice of students who threaten suicide or self-harm. Can a school be held legally liable for a student s suicide? Statistics According to the U.S. Centers for Disease Control and Prevention, suicide rates among 15- to 19-year-olds have more than tripled since 1990, with suicide rates among 10- to 14-yearolds almost doubling since the 1980s. Overall, nearly 9 percent of all recorded suicides in the United States are committed by individuals ages 19 and younger. Other studies reveal that for every suicide, there are 100 attempted suicides, and of that number, 1 in 13 high school students attempt suicide in a given year. Similar studies indicate that girls are three times as likely as boys to attempt suicide, but boys attempts are almost four times as likely to be successful. In the end, all of these statistics and studies cannot account for the number of young people who have contemplated suicide or whose attempts have gone unreported or undiscovered. Schools and school districts have encountered an increasing number of legal claims, which typically focus on the school s failure to take steps to prevent a student s suicide. It is important that educators understand the legal theories that underlie these claims and do everything in their power to minimize their potential liability for student suicide. Theories Whether a school district can be held liable for a student s suicide often depends on the basis of the legal claim being brought. Generally speaking, there are two legal theories that inspire suicide-related lawsuits. The first is a tort claim of negligence and the other is a constitutional claim based on due process. Negligence Most school administrators are familiar with negligence. A common tort claim in many contexts, negligence is the breach of a legal duty by one person or entity that causes injury to another person or entity. To succeed in a negligence claim, a plaintiff must establish the four elements of a negligence cause of action: a legal duty owed, a breach of that duty, a causal relationship between the breach and the plaintiff s injury, and an actual loss or damage suffered by the plaintiff as a result. All four elements must be established, the PHOTO BY CLEO 74 P RINCIPAL L EADERSHIP

first two elements being vital. That is, if the cause of action is negligence and the plaintiff cannot establish that the defendant owed the plaintiff a legal duty, the case is over no matter how the defendant acted. But if a legal duty can be established, the plaintiff moves forward, attempting to prove the remaining elements of the claim. A Case Study Wyke v. Polk County School Board (No. 95-3653, 11th Cir., 1997) is a wellknown case involving student suicide and a school district s negligence. Wyke involved the suicide of a 13-year-old boy named Shawn whose parents alleged that the school district violated their son s constitutional rights and that the school was negligent for failing to notify them of their son s two suicide attempts. The first attempt took place in the boys restroom. Another student reported to his mother that he found Shawn trying to hang himself with a football jersey. When the parent called the school s dean of students and reported what her son had told her about Shawn, she was assured by the dean that the school would take care of the situation. Soon after, the dean called Shawn into his office. Without contacting Shawn s parents, the dean read Bible verses to Shawn, talked to him, and sent him back to class. The second attempt also occurred in the boy s restroom. A school custodian, who initially could not positively identify the boy as Shawn Wyke, reported her encounter with a suicidal male student to the school s vice principal, who shrugged off the report. The following day, Shawn hanged himself in his backyard. Shawn s parents later sued the school board, the principal, and the vice principal. Although the court of appeals threw out the constitutional claim, it held that the evidence and the law supported holding the school board liable for Shawn s death. In doing so, the court found the following facts to support a claim of negligence. First, the school had a legal duty to exercise reasonable care when supervising students. Second, because the school failed to put Shawn in protective custody or notify Shawn s parents about the in-school suicide attempts or to obtain professional counseling for Shawn, the school breached its duty to Shawn. The court also addressed the issue of foreseeability saying if ever there was a situation where a person of ordinary prudence would recognize an an acute emotional state, this was it... a prudent person would [not] have needed a crystal ball to see that Shawn needed help and that if he didn t get it soon, he might attempt suicide again. The court then went on to address the final two elements of the negligence cause of action, finding that Shawn s death was caused by the school s failure because it would be reasonable to assume that Shawn would have received help that could have prevented his death had the school administrators adequately supervised Shawn (e.g., notified the family or held him in protective custody). Damages resulting from the school s negligence were apparent. Liability Wyke is just one example of suiciderelated lawsuits in which courts have found that certain school employees have a duty to use reasonable means to attempt to prevent a suicide in situations where an employee is on notice of a student s intent to commit suicide. This does not mean however, that school boards and employees will always be held liable. In negligence claims, there are two commonly asserted defenses. The first defense is governmental immunity. Such immunity protects the government and its agents from liability in cases in which the government does not consent to liability. In the school context, a board of education is a governmental entity that may not be liable in certain tort actions except where it has waived immunity. Various SEPTEMBER 2001 75

In circumstances in which there is a known risk of grave danger to a specific student or individual, the duty of reasonable care will outweigh confidentiality. states have immunity statutes that embrace this principle, and such statutes are often asserted in defense of negligence claims. The Minnesota Court of Appeals recently found in favor of a Minnesota school district in a suicide-related negligence case. The case was brought by the parents of a ninth grade student who had killed herself after mentioning suicidal thoughts to the school counselor and writing about killing herself in an English essay and a letter to a friend. In that case, the parents claimed that the school s lack of a suicide prevention policy and the school counselor s failure to immediately notify them of their daughter s numerous suicidal statements amounted to negligence. (The counselor notified the parents of the first suicidal statements a few months prior to the suicide). The court based their ruling on discretionary immunity, which offers protection to governmental groups when making public policy decisions. Another defense available in a small number of states is that of contributory negligence. Basically, some states will not hold a defendant liable if a plaintiff contributed in any way to the fault. Thus, if both the school board and the parents were at fault in a contributory negligence state, regardless of the degree of fault, the parents would not be able to recover damages from the school system in a suicide-related or other negligence claim. Currently, five states (Ala., Md., N.C., S.D., and Va.) and the District of Columbia maintain contributory negligence standards. Due Process Aside from a tort claim of negligence, suicide-related lawsuits are often based on Section 1983 of Chapter 42 of the U.S. Code, which offers a way to enforce a claim based on the due process clause of the U.S. Constitution. Section 1983 is a civil rights statute that can be used as a basis for a wide range of legal claims that involve alleged deprivation of life, liberty, or property interest. In suicide-related claims brought under Section 1983, a plaintiff must overcome a recognized legal proposition that governments are not required to guarantee a student s safety. To do that, a plaintiff must show that a special relationship exists between school officials and the student or that school officials themselves have actually created the danger to which the student was exposed. Meeting this burden of proof is much more difficult than establishing the elements of a tort claim, such as negligence. A 1998 case, Armijo v. Wagon Mound Public Schools, (159 F. 3d [1998] 1253) illustrates this. Philadelfio Armijo, a 16-year-old student, told a school aide, Maybe I would be better off dead. Philadelfio also later told the aide that he was going to shoot himself. The aide reported these comments to the school s counselor. On the day of his suicide, Philadelfio was suspended for threatening a teacher. The principal did not notify the boy s parents of the suspension, but did notify the police and ask them to detain Philadelfio if he attempted to return to school. The principal also instructed the counselor to drive the boy home. Although the counselor knew that Philadelfio had access to firearms, the counselor did not attempt to contact the boy s parents or to determine whether anyone was at home before he dropped the boy off. When the Armijo s returned home, they found Philadelfio had shot himself in the chest and died. In their suit against the principal, counselor, aide, and school district, the Armijos claimed that their son s substantive due process rights had been violated. In trying to determine whether a special relationship existed or whether school officials created the danger to which Philadelfio had been exposed, the court articulated a six-part test. First, plaintiff had to be a member of a limited and specifically definable group. Second, the defendant s conduct must have put the plaintiff at substantial risk of serious, immediate, and proximate harm. Third, the risk must have been known or obvious. Fourth, the defendants must have acted recklessly in conscious disregard of that risk. Fifth, the conduct viewed in total must shock the conscience. And sixth, the plaintiff must show that the charged state entity and the charged individual defendant actors created the danger or increased the plaintiff s vulnerability to the danger in some way. After considering all of these elements, the court determined that the facts of the case were conscience shocking. The court also found that no special relationship existed between school officials and Philadelfio because the boy was not in restrictive custody of school officials at the time of his death. The court determined that the school aide could not be held liable, but the claims against the principal, school counselor, and the school district were sent back to the trial court for further consideration. Principles Armijo, Wyke, and similar cases show that many factors influence whether a school district, individual school official, or other school employee may be held liable for a student s suicide. And although all cases will be considered on their own facts and under various state laws, there are some general legal principles that underlie liability in this area. Duty: In a negligence claim, a duty must exist before liability can be imposed. Courts recognize that school districts, administrators, and employees have a general duty to exercise reasonable care in supervising students while 76 P RINCIPAL L EADERSHIP

they attend school. With increasing frequency, courts have imposed a duty upon school employees with special training (e.g., school counselors and therapists) who have knowledge of foreseeable harm to a student to report such knowledge to the parent or guardian and to take other reasonable steps to prevent such harm. A school principal with actual knowledge of foreseeable harm has a similar duty to report that knowledge to the parent or guardian of the student. In circumstances in which there is a known risk of grave danger to a specific student or individual, the duty of reasonable care will outweigh confidentiality. Although a simple duty to exercise reasonable care in supervising students exists, there is no recognized affirmative duty for educators to protect students from themselves or for administrators without special training to diagnose or otherwise discover medical or psychological conditions that may lead to a suicide. Foreseeability: Where a special relationship or duty exists, school administrators should take reasonable steps to prevent harm that is reasonably foreseeable. A court will usually not impose liability where a mere possibility of harm exists (i.e., school administrators need not fear the lack of a crystal ball). Nevertheless, the court will consider the totality of the circumstances in a particular case to determine whether harm was reasonably foreseeable. For example, a suicide prevention policy could be used to show what is reasonably foreseeable, although mere failure to follow the policy does not automatically result in legal liability. Special relationship: Due process does not require the government or state actors to guarantee an individual s safety. Thus, liability for failing to protect a life, liberty, or property interest may only be imposed when a special relationship exists or when the state creates the danger to which an individual is exposed. With regard to due process, a special relationship involves involuntary custody (restraint of personal liberty). This is a unique rule that usually comes into play with regard to committed patients or incarcerated prisoners. Although such suicide-related cases as Armijo have attempted to claim a special relationship in the school context, the existence of compulsory attendance laws almost always negates the special relationship basis for liability under Section 1983. Danger creation: If the state or the state actor created the danger to which the student was exposed, then there may be a basis for liability under due process in a suicide-related case. There must also have been a known or obvious risk of imminent harm in the face of which the state exhibited shockingly reckless or conscious disregard. Immunity/contributory negligence: State-based immunity may come into play in defense of liability in suiciderelated and other cases brought against the government and its agents. Also, in some states, contributory negligence rules may negate liability in circumstances in which the plaintiff bears some fault. Overall, school administrators, district, or employees may be held liable for a student s suicide if the administrator, the district, or the employee had actual knowledge of foreseeable harm and failed to take reasonable steps to prevent such harm. Liability may also be imposed if the administrator, the district, or the employee has a special relationship to the student or created the danger to which the student was exposed. Answers Clearly, the statistics regarding schoolage suicide rates, the rising incidence of in-school suicide attempts, and continuing debate over causes and SEPTEMBER 2001 77

liability show that there are no easy answers to this problem. Nevertheless, from a policy standpoint, there are some things you can do. Have a written prevention policy or crisis management policy in place at your school. A model policy will, at a minimum, contain information on the following: Warning signs: Provide staff members with written criteria or listing of potential warnings signs for suicide. Detection of these warning signs should be a focus of policy training. Appropriate response: In many suicide-related lawsuits, sufficiency of response is key. It is not enough for school administrators and faculty members to recognize that a student may be in danger; that administrator must appropriately respond to the warning signs, attempted or threatened. Parents should be notified immediately and mental health professionals should also be involved. Some schools have policies that provide for holding suicidal students in protective custody until appropriate help can be secured. Notification procedures: In almost all of the suicide-related cases that have been brought against school districts in recent years, most of the parents have claimed that the school s lack of or tardy notification amounted to a breach of duty to the parent and the student. Parental awareness is an integral part of intervention and prevention of student suicide. Sometimes the signs and signals exhibited by a suicidal student in school may go unnoticed by the parent or may not be exhibited at home. Some schools attempt to inform parents in newsletters that outline the school s suicide or other crisis policies. Seek out professionals who can help inform the policy development process to ensure that your policy is comprehensive and can help implement the policy in your school. Train your staff on all elements of your suicide or crisis management policy. Also provide training and information to students so they know when and how to report suicide threats to adults. Heed warnings and cries for help. You, your staff, and your students should be cognizant of potential warning signs that a suicidal student displays. Because there is no exhaustive list of signals, you must keep your eyes and ears open for cries for help that may not be as obvious as a suicide attempt in the boys restroom or a student s English essay about killing herself. According to experts in the field, hopelessness, depression, withdrawal, impaired academic performance, and preoccupation with death can all be a basis for caution. Also keep in mind that some suicidal people do not exhibit any such warnings signs. Be aware of relevant laws in your state and other regulations that affect your actions. Some states require schools to have various policies in place and dictate what components should be included in those policies. Also, federal laws, such as the Individual with Disabilities Education Act (IDEA), must be adhered to when dealing with students who have an Individualized Education Plan (IEP). In the end, the most important thing that principals can do is ensure that their schools are communities that embrace all students. Effective principals work diligently with their staff members to create and enforce a welcoming and supportive environment. Hopefully, such environments will not only minimize potential legal liability for school leaders but also help to reduce the incidence of student suicide. PL Kelley R. Taylor, Esq., (taylork@principals.org) is general counsel for NASSP. 78 P RINCIPAL L EADERSHIP