by Edward D. Shoulkin and Greg Vanden-Eykel
Amid the rising tide of suicides on college campuses across the country, the Massachusetts Supreme Judicial Court has recognized that colleges and universities have a “special relationship” with their students in certain circumstances and, with that relationship, an affirmative duty to take reasonable measures to prevent students from committing suicide. The Court made the pronouncement in its May 7, 2018 decision in Nguyen v. Massachusetts Institute of Technology, 479 Mass. 436 (2018). Although the decision affirmed the Superior Court’s entry of summary judgment in favor of MIT, the Court’s holding alters the legal relationship between universities and their students and, consequently, imposes new duties upon educational institutions and their employees.
At the time of his death in 2009, the decedent was a 25-year-old graduate student at MIT. Before enrolling in the school in 2007, he had twice attempted suicide; first in 2002, and again in 2005. He received mental health services both prior to and during his enrollment at MIT. In May 2007, the decedent requested assistance from MIT for his test-taking difficulties. MIT’s Ph.D. Program Coordinator met with and referred the decedent to the school’s Mental Health and Counseling Services, as well as the school’s Student Disability Services Office Coordinator. Both clinical and non-clinical university employees met and communicated with the decedent on numerous occasions between May and September 2007, but the decedent never mentioned any present suicide ideation or expressed a specific intent to harm himself. He did, however, divulge his long history of depression, as well as his two pre-enrollment attempts to commit suicide. The decedent elected not to seek counseling from MIT after September 2007, but continued to receive mental health services from outside providers. In June 2009, the decedent took his own life. His father brought a wrongful death action against MIT, an assistant dean in the school’s student support services office, and two non-clinician faculty employees.
The far-reaching implications of the issues that the Nguyen Court was asked to address were not lost upon the plaintiffs’ bar or the Commonwealth’s colleges and universities (collectively “universities” in this article).[1] The Massachusetts Academy of Trial Attorneys filed an amicus brief. Eighteen Massachusetts colleges and universities filed a joint amicus brief in support of MIT and its co-defendant employees.
The Nguyen Court’s analysis began with a recitation of the general tort principle that there is no duty to prevent another from committing suicide. Id. at 448. Thus, “we do not owe others a duty to take action to rescue or protect them from conditions we have not created.” Id. at 448 (quoting Cremins v. Clancy, 415 Mass. 289, 296 (1993)(O’Connor, J. concurring). From there, the Court made clear that this general negligence principle does not apply to the modern relationship between universities and their students, which the Court described as complex. While academics remain the schools’ primary mission, the Court recognized the significant role that universities have in providing students with social, athletic, and cultural opportunities, among others. The Court also weighed “competing considerations,” which require universities to be “respectful of student autonomy and privacy.” Id. at 451.
Affirming the grant of summary judgment for MIT, the Court rejected the plaintiff’s arguments that MIT owed or breached a general duty of care to the decedent. Nevertheless, in balancing the competing factors described above, the Court concluded that a university has a “special relationship” with a student and a corresponding duty to take “reasonable measures” to prevent a student’s suicide “where a university has actual knowledge of a student’s suicide attempt that occurred while enrolled at the university or recently before matriculation, or of a student’s stated plans or intentions to commit suicide.” Id. at 453.
“Reasonable measures” that would satisfy the duty, once triggered, include the initiation of the school’s suicide prevention protocol, presuming, of course, the school has adopted such a protocol. Where a protocol does not exist, the employee who learns of a student’s suicide attempt or stated intention to commit suicide must notify school officials capable of assisting the student obtain clinical care. If the student refuses care, the university must then notify the student’s emergency contact. In emergency situations, reasonable measures would include contacting police, fire, or other emergency services. Id. at 456-7.
The Court states that taking such measures satisfies a university’s duty. Id. Nevertheless, the Nguyen decision creates a number of significant challenges and questions for colleges, universities, and potentially other educational institutions attempting to satisfy this new legal duty.
First, although the Court states that a school may satisfy the “reasonable measures” duty by initiating the university’s suicide prevention protocol, it does not discuss what constitutes a sufficient suicide prevention protocol. Like many issues involving psychiatric evaluation and care, the measures contained within a suicide prevention protocol may vary from institution to institution. Advances in the evaluation and treatment of at-risk students may prompt amendments to protocols used by some schools, but not others. As with other mental health issues, clinicians may also differ on the optimal methods of preventing suicides. Merely adopting and implementing a suicide prevention protocol may not shield a university from liability, as the battleground issue in litigation between universities and families who have lost their children to suicide may not be whether the school has a protocol, but whether the protocol’s procedures are deemed adequate. Nguyen is silent on these issues.
Second, despite recognizing that non-clinicians cannot be expected to discern suicidal intentions that are not evident, Nguyen raises questions concerning the types of statements by a student that will trigger a university’s duty to act. The Court held that the duty arises when the university “has knowledge of a student’s stated plans or intention to commit suicide,” and that the duty is not triggered merely by “knowledge of a student’s suicidal ideation without any stated plans or intentions to act on such thoughts.” Id. at 453 and 455. At first glance, this language suggests that a claim only arises where the student’s words evidence a clear and unambiguous intent to attempt suicide. In elaborating on the standard, however, the Court cites the Columbia Suicide Severity Rating Scale (C-SSRS) as “informative of what constitutes a student’s stated plans or intentions to commit suicide.” Id. at 453, n. 16. According to the C-SSRS, such statements consist of “active suicidal thoughts of killing oneself and subject reports having some intent to act on such thoughts as opposed to ‘I have thoughts but I definitely will not do anything about them.'” Id. (emphasis supplied). “Some intent to act” may be construed as creating a lower standard for triggering a university’s obligation to intervene than the clearer, and possibly more definitive language found elsewhere in the Court’s opinion. Given the myriad scenarios in which a student’s conflicting words may be construed to suggest “some intent” to commit suicide, the Court’s reliance on the C-SSRS risk assessment tool arguably creates a more equivocal threshold for determining whether and when the duty to act has been triggered. Future lawsuits arising from a student’s actual or attempted suicide may very well hinge on whether the words used by the student and the manner in which they were expressed evidenced “some intent” to commit suicide.
Although the Court described the duty on the part of non-clinicians as limited, university faculty and other employees may take little solace from the qualification. However “limited” the Court intended its newly-stated duty for non-clinical employees, the fact remains that university employees may now be sued if they are alleged to have had knowledge of “some intent” by a student and failed to take reasonable measures.[2]
In addition, while it may often be easier to determine that the duty to act has been triggered upon learning of a student’s actual attempt at suicide during the student’s enrollment or “recently before” the student’s matriculation, that may not always be the case. In Nguyen, the Court found that the decedent’s last prior suicide attempt was not recent enough to trigger a duty because it occurred “well over a year before matriculation.” Id. at 457. The decision does not address how recent a student’s pre-matriculation suicide attempt must be to require action by a school. Would a suicide attempt within six months of matriculation be sufficiently “recent,” or for that matter, eight or twelve months? The issue may prove too fact-intensive to result in a single, specific amount of time applicable to all cases and may vary depending upon the student’s circumstances in each case. In an excess of caution, universities may reflexively initiate their suicide prevention protocols upon learning of any prior suicide attempt by a student, regardless of the amount of time that has elapsed by the time the student has matriculated.
Another important question is whether the duty recognized in Nguyen will be extended to educational institutions other than colleges and universities. The short answer is probably. Indeed, Nguyen itself contains the seeds of its prospective expansion. Although the Court speaks of the special relationship between universities and students, it relies, in part, upon the Restatement Third (Third) of Torts: Liability for Physical and Emotional Harm §40(a)-(b) to support the recognition of the relationship and corresponding duty. The Restatement is not confined to the university/student relationship and recognizes a special relationship generally between “a school with its students.” Further, the Nguyen Court defined its use of the term “university” to include “other institutions of higher education, including but not limited to colleges and universities.” Id. at 449, n. 13 (emphasis supplied). Such statements, together with the Court’s invocation of moral and social policy considerations as a rationale for its decision, suggest that the question is not whether the duty will be imposed upon other educational institutions in future cases, which appears highly likely, but rather how many other types of educational institutions will be found to have such a duty.
Nguyen ushers in a new chapter in the educational institution and student relationship. Regardless of a student’s age, educational institutions should work closely with their students, families, employees, and local communities to address these sadly increasing circumstances.
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[1] As the Court noted, the most recent statistics available from the Centers for Disease Control show that suicide is the second leading cause of death among both the fifteen to twenty-four and twenty-five to thirty-four year old age groups. Suicide prevention, therefore, is not only a priority for college-aged students, but also for graduate and professional schools. Nguyen, 479 Mass. at 454, n. 17 (citations omitted).
[2] Medical and mental health professionals employed by a university (i.e. “clinical” employees) remain bound by the standards of care established by their respective professions. Clinicians and the universities that employ them may still be sued for a breach of those standards, including breaches that fail to prevent a student’s suicide.
This article originally appeared in the July 2018 Massachusetts Defense Lawyers Association (MassDLA) member newsletter.
Barton Gilman provides the full scope of legal services to education clients – including charter schools, charter management organizations, private schools, education advocacy organizations and other education-related organizations – throughout Massachusetts, Rhode Island and New York City. For more information, please click here.
Edward D. Shoulkin is a skilled trial and appellate attorney with 25 years of experience in a broad range of litigation matters, particularly in defending professionals in civil disputes and disciplinary proceedings, including property managers, accountants, real estate brokers, health care providers, insurance agents, attorneys, home inspectors, and other professionals. He also represents multinational corporations, small businesses and individuals in business disputes, construction litigation, product liability cases, premises liability actions, liquor liability claims, environmental litigation, and insurance coverage matters.
Greg Vanden-Eykel, an attorney at Barton Gilman, successfully represents Massachusetts and Rhode Island schools, students, and families before federal and state courts and administrative agencies, including the U.S. Department of Education’s Office of Civil Rights, the Massachusetts Department of Elementary and Secondary Education, and the Rhode Island Department of Education. He also regularly drafts and provides counsel related to education policies and procedures to ensure compliance with federal and state laws.
