I. Introduction
On November 20, 2010, fourteen-year-old Adam Tonn ended his own life by shooting himself with a gun legally owned but questionably stored by his stepfather, Eric Moore, in the master bedroom of his Arizona home.Footnote 1 Adam’s father, Matthew Tonn, who shared custody of Adam, filed a wrongful death action against Adam’s mother and stepfather (“the Moores”), alleging negligent storage of the firearm.Footnote 2 Improper and unsecured storage of the weapon and ammunition, the suit alleged, was a direct and proximate cause of the child’s death.Footnote 3 Arizona courts disagreed, however, ruling that Adam’s death was “unforeseeable” because the boy had never shown notable signs of depression or suicidal ideation. Footnote 4 Therefore, “As a matter of law, Adam’s suicide constituted an intervening, superseding cause for his death, releasing the Moores from liability for allegedly storing the firearm inappropriately.”Footnote 5 The grant of summary judgment was upheld on appeal, and the question of negligent firearm storage – in truth the crux of the case – was never addressed.Footnote 6
Historically, suicides were uniformly legally unactionable due to this reasoning and based on two overlapping prongs: foreseeability issues and the breaking of the causal chain.Footnote 7 However, recent trends in both criminal and civil law serve as a step towards potential third party liability for suicides.Footnote 8 Indeed, the shift in causation analysis formalized in the Restatement (Third) of Torts (the “Restatement”) should make tort liability in certain suicide cases a possibility.Footnote 9 The Restatement now limits tort liability to “harms that result from the risks that made the actors conduct tortious.”Footnote 10 This reframing stems from a shift away from traditional proximate cause analysis, instead opting for a scope of liability analysis dependent on the unreasonableness of certain conduct due to associated foreseeable risks.Footnote 11 In other words, the latter prong of the barriers to liability following a suicide, the breaking of the causal chain, is no longer an issue.
Therefore, if suicide is a foreseeable harm as a result of certain unreasonable conduct, that conduct was negligent and should be actionable if the harm comes to pass. Still, suicides are typically treated as separate, special cases. In 2019, Alex Long of the University of Tennessee College of Law called for an end to the “suicide rule,” supporting the trend “away from singling out suicide cases for special treatment and toward an analytical framework that more closely follows traditional tort law principles.”Footnote 12
This Note supports this call for change, perfectly in step with trends in the law of the United States, to treat suicide not as an incident isolated to the deceased, and thereby unactionable under theories of proximate cause, but as a potentially foreseeable tragedy with causes both internal and external to the deceased. Indeed, at the very least, the question of negligent gun storage and ownership in the Adam Tonn case should have been a question for the jury.Footnote 13 Further, this Note agrees with the idea and argues that, given the extreme control parents have over the day-to-day lives, medical treatment, and mental health care of their children, the law of the United States should recognize wrongful death causes of action or similar actions in tort against parents in the aftermath of a child’s suicide under the Restatement approach.Footnote 14
Finally, though, this Note suggests even the Restatement view of scope of liability may not be enough to sufficiently provide an answer to the underlying causes of suicide nor act as a suicide deterrent. Liability will still be impossible in cases such as Adam Tonn’s, where the suicide was considered unforeseeable as a matter of fact. Therefore, in cases of minor suicide, the law should go one step further. After all, suicides – particularly the suicides of children and teens – are special cases and should be treated as such.
This Note argues, in particular, that the suicides should be considered foreseeable as a matter of law in wrongful death suits when the decedent was a minor, and where one or more parent or guardian met certain causation thresholds of abuse, neglect, or negligence as a matter of fact to be teased out at the common law.Footnote 15 In other words, the question of foreseeability and unreasonableness inherent in a scope of liability analysis should not be put to the jury in certain cases. Select conduct by a parent or guardian should be considered inherently unreasonable when a subsequent suicide could have been prevented, even if the suicide would typically be dubbed unforeseeable. This shortcut for extreme cases would function, in practice, akin to the doctrines of res ipsa loquitur,Footnote 16 strict liability,Footnote 17 or per se negligence,Footnote 18 already readily accepted within the purview of tort law as logical methods to err towards liability in certain cases.
Section II will begin by outlining the treatment of suicide cases through a historical lens, analyzing both the tort framework applicable in civil cases, including the applicability of the parental immunity doctrine, as well as the changing treatment of suicide in criminal contexts. Section III will then analyze the statistical prevalence of suicide in the United States, including the alarming increase over recent years as well as the tragic commonality of minor suicide. Further, Section III will discuss some of the underlying causes of minor suicide, including internal factors pertaining to the mental and physiological development of children and teens, as well as external factors such as refusals to provide care, abuse or neglect, and negligence pertaining to methods of suicide, such as negligent storage of firearms or medication. Finally, in Section IV, this Note will conclude by arguing for the assumption foreseeability, making liability a certainty rather than a possibility in wrongful death suits based on the suicide of a minor child. In sum, this Note will conclude that this shortcut, modifying existing understandings of tort law, is warranted given the likewise extreme nature of minor suicide as a preventable tragedy.
II. Suicide and the Law
This Section will summarize the historical legal treatment of suicide, including how the legal view of self-inflicted death is evolving, driven by general trends in tort and criminal law.
a. The Suicide Rule
Historically, within English common law and early American colonial law, suicide, due in large part to religious taboos and stigma surrounding mental health issues, was generally a felony committed by the decedent, and only the decedent.Footnote 19 Though the harsh view of suicide as a crime, including property forfeiture provisions under English law, faded in the United States during the nineteenth century,Footnote 20 remedy at tort remained impossible while moral disapproval persisted.Footnote 21 Given that the act of suicide itself was considered a moral and legal wrong enacted by the decedent,Footnote 22 legal causation linking the suicide back to anyone other than the deceased individual failed.Footnote 23 As previously noted, liability of third parties for a suicide typically failed due to issues of foreseeability and causation, with each of these two factors weighing heavily on the other.Footnote 24
For instance, in Scheffer v. R.R. Co., an 1881 case, the court held that a suicide was not a foreseeable result of injuries suffered prior to the suicide and the suicide was therefore unactionable.Footnote 25 The suicide itself was an intervening cause of death and the chain of causation was broken as to third parties.Footnote 26 Both the cause and the harm itself were isolated to the individual committing suicide.Footnote 27 This rule held firm a century later in a 1994 Ohio case, Laytart v. Laytart, involving a teen suicide after abuse by an adult.Footnote 28 The court dismissed the case, concluding suicide was an intervening cause, and suicide was not a foreseeable result of abuse.Footnote 29 Further, given that suicide is an inherently self-inflicted and intentional act, courts generally decline to recognize proximate cause of injury outside of the act and the individual in question.Footnote 30 For example, the court in La Quinta Inns, Inc. v. Leech, the court held that the suicide itself was the “sole proximate cause of death.”Footnote 31
The only exception to the limits on tort liability relating to suicide generally recognized, though not supported by modern understanding of human psychology, is one where a tort by a third-party causes “insanity” in the deceased such that the insanity leads to an “irresistible impulse” towards suicide.Footnote 32 For example, in 1994 a Wyoming court considered whether years of sexual abuse had negated the “voluntary” nature of suicide in R.D. v. W.H., finding the wrongful death cause of action adequately pled.Footnote 33 The flaws in this theory become obvious when viewed with a modern understanding of human psychology, however.Footnote 34 The term “insanity” has not been a diagnosis for about a century, but still remains a legal status.Footnote 35
Still, this model is helpful to illustrate the logic behind removing or scaling back the hard lines in the legal treatment of suicide.Footnote 36 The “insanity” suicide theory is based on the idea that legally insane parties lack self-control, and therefore could not have intended the suicide.Footnote 37 In other words, the causal chain necessary for tort liability on another party, normally broken by the deceased’s exclusive intent to take their life, is maintained.Footnote 38 Since the deceased party did not truly intend to take their own life, they were a fully innocent party and culpability for the death can fall on another based on some action conducted by that other.Footnote 39 Therefore, courts have considered and accepted that, in some circumstances, suicide may have contributing, and actionable, causes external to the victim.Footnote 40
Treatment of suicide as an individualized, isolated incident in order to cut off causation at the decedent has been dubbed “the suicide rule” by some courts and commentators.Footnote 41 The suicide rule remains the default view of suicide “under normal circumstances.”Footnote 42 However, as the understanding of mental illness evolves, some courts have moved towards a more traditional tort analysis of suicide rather than applying the specialized causation rule, particularly in cases of treating doctors and mental health professionals.Footnote 43 For example, in Edwards v. Tardif, a treating doctor who prescribed antidepressants prior to a suicide was held liable for the death after the question was put to the jury.Footnote 44 Similarly, other scholars have called for parental liability, whether criminal or civil, as a method of discouraging the abuse and neglect that may lead to child suicide, though cases in this area are limited.Footnote 45
As discussed, supra,Footnote 46 under the existing structure of torts liability, “An actor’s liability is limited to those harms that result from the risks that made the actor’s conduct tortious,”Footnote 47 a view enabling liability for conduct that foreseeably increased the risk of suicide. However, “When a force of nature or an independent act is also a factual cause of harm, an actor’s liability is limited to those harms that result from the risks that made the actor’s conduct tortious.”Footnote 48 It is by and through this understanding that the Tonn court found inadequate causation as a matter of law.Footnote 49 Indeed, it is through this lens suicide has been viewed by the law, historically.Footnote 50
Within this existing framework, there are certain shortcuts that lower the burden of proof as to the scope of liability in certain extreme cases. For example, the doctrine of res ipsa loquitur allows the inference of negligence liability “when the accident causing the plaintiff’s harm is a type of accident that ordinarily happens as a result of the negligence of a class of actors of which the defendant is the relevant member.”Footnote 51 In other words, the jury is allowed to use logical reasoning to assume the alleged negligence occurred based simply on the injury suffered itself. Likewise, conduct involving “abnormally dangerous activity” may be subject to strict liability, essentially assuming causation is automatically met due to the unnecessary risk associated with the conduct.Footnote 52 Similarly, the doctrine of per se negligence likewise determines liability based on the mere occurrence of a certain issue protected by statute, alone.Footnote 53
b. Wrongful Death Actions
Another historical barrier to liability following a suicide is that there is no common law right of action for wrongful death; however, every state in the United States has passed a wrongful death statute allowing recovery.Footnote 54 These statutes generally track wrongful death through underlying personal injury actions and tortious negligence law.Footnote 55 In other words, if negligence causes death, a wrongful death suit may be the best of the available responses.Footnote 56 Such actions, therefore, generally consist of a duty to the deceased individual that was breached through negligence or similar activity that caused the death, which in turn caused damages.Footnote 57
Notably, depending on the state, there may be limits on who can bring a wrongful death suit.Footnote 58 For example, some states limit wrongful death suits to the executors of the deceased’s estate.Footnote 59 For cases that seek parental liability for the suicide of a child, commentators have suggested allowing state entities or welfare agencies on states’ behalf to bring suits in order to further the public interest goal of child protection.Footnote 60 While this Note supports allowing such actors to bring wrongful death suits against negligent parents, for purposes of the causation analysis it will be assumed the suits in question are permitted to be brought by the suing individual. In addition to state actors, this may include one parent suing the other for wrongful death, or a sibling, friend, or other close family member.Footnote 61
c. Parental Immunity
Any suit brought against a parent – such as the Adam Tonn suit, the wrongful death actions contemplated by this Note, or more general negligence suits not involving suicide – must also consider parental immunity. Historically, parental immunity has served as a complete barrier against suits brought by children against their guardians.Footnote 62 The public policy reasoning underlying parental immunity from tort suits by their children is the fear of disturbing domestic tranquility, the risk of fraud and collusion, depletion of family resources, the potential for the parent to recover via inheritance, and interference with “parental care, discipline, and control.”Footnote 63 However, what was once the uniform rule barring suits brought by children against their parents began to falter in the 1960s.Footnote 64 Indeed, views of childhood, parenthood, and the relationship between a child and a guardian had changed dramatically, requiring an updated legal view.Footnote 65 As a result, the immunity was “whittle[d] away by statute and by the process of interpretation, distinction and exception.”Footnote 66 By the 1970s, twelve states had already abolished the doctrine altogether.Footnote 67 Today, the majority view today is that “A parent is not immune from tort liability to his or her child,”Footnote 68 though several states continue to prescribe to the immunity while carving out exceptions for “brutal, cruel, or inhuman treatment” as needed.Footnote 69
d. Criminal Treatment
It appears, meanwhile, that criminal courts are more ready to accept this shift in the understanding of suicide. Indeed, in 2003, a parent in Connecticut was criminally prosecuted for the suicide death of her child for the first time in that state’s legal history.Footnote 70 In that case, a mother’s failure to notice several warning signs of suicide prior to the suicide death of her twelve-year-old son, Daniel Scruggs, was put on trial.Footnote 71 Before his death, Daniel failed to shower and would intentionally soil himself in order to be sent home from school or avoid attending.Footnote 72 Daniel’s mother, Judith, meanwhile, took no action, ultimately discovering his body more than twelve hours after he had died.Footnote 73 While the conviction was overturned on other grounds,Footnote 74 this kind of criminal liability can be viewed as a predecessor to the kind of civil liability via wrongful death actions described here.
Similarly, the high-profile caseFootnote 75 involving the death of eighteen-year-old Conrad Roy III is notable.Footnote 76 There, Roy’s girlfriend Michelle Carter, seventeen years old herself at the time, encouraged Roy via text messages to go through with his plan for suicide and even listened on a phone call while he choked and passed away.Footnote 77 Roy took his own life through voluntary carbon monoxide inhalation in his truck in July of 2014.Footnote 78 The Supreme Judicial Court of Massachusetts, in a unanimous decision in 2019, upheld Carter’s conviction for involuntary manslaughter.Footnote 79
Justice Scott L. Kafker, in affirming the decision, reasoned that Roy would have been the cause of his own death had he gone through with the suicide on his first attempt – when he first entered his truck with the intent to end his own life.Footnote 80 However, Roy did not go through with the suicide based on this initial intent alone.Footnote 81 Instead, he exited the truck, having second thoughts, and only reentered upon conversing via text message with Carter, who encouraged him to get back in the truck and go through with the planned suicide.Footnote 82 Via text message, Carter argued “I thought you wanted to do this … The time is right and you’re ready – just do it babe.”Footnote 83 This reset the timing of causation, and enabled prosecutors to hold Carter, an external actor not even physically present at the time of the suicide, liable for Roy’s death.Footnote 84
In describing the outcome of the case, Massachusetts District Attorney from Bristol County Thomas Quinn III stated, “As the court found in two separate decisions, [Carter’s] conduct was wanton and reckless, and caused the death of Conrad Roy,” echoing Justice Kafker’s analysis.Footnote 85 Commentators speculated what kind of legal precedent the decision would set within Massachusetts and across the country,Footnote 86 specifically stating it would speak to whether it is a crime to tell another to take their own life and theorizing the highly publicized nature of the case may encourage lawmakers to codify such encouragement of suicide as criminal.Footnote 87 While the media coverage surrounding the case seemed to indicate that public opinion supported conviction,Footnote 88 the decision has also been criticized.Footnote 89 Nevertheless, the legal reasoning underlying the cases rely on acknowledgment of a lack of pure, individualized intent behind the choice of suicide in some cases.Footnote 90 In other words, in these cases, the court acknowledged the cause of the suicide was not as simple as it may have seemed.
Another important consideration in criminal cases relating to suicides of minors is parental abuse. Indeed, ongoing or acute abuse by a guardian is a well-documented risk factor for child suicide.Footnote 91 Child abuse is covered by federal law via the Federal Child Abuse Prevention and Treatment Act, with supplementation at the state regulatory level.Footnote 92 Specifically, under federal law, “any recent act or failure to act on the part of a parent or caretaker which results in death, serious physical or emotional harm, sexual abuse or exploitation” constitutes abuse of a child.Footnote 93 Under state law, Massachusetts, for example, defines abuse as “the non-accidental commission of any act by a caretaker upon a child under age 18 which causes, or creates a substantial risk of physical or emotional injury, or constitutes a sexual offense under the laws of the Commonwealth or any sexual contact between a caretaker and a child under the care of that individual.”Footnote 94 All fifty states have passed statutory or regulatory definitions of child abuse in addition to the federal framework.Footnote 95 Despite this underlying legal and regulatory structure, the Scruggs case is the only example of criminal charges being brought against a parent for a child’s suicide.
Proof of the abuse is difficult to establish in many cases.Footnote 96 The victim – the child – may be the only witness,Footnote 97 and “[a] child’s feelings of vulnerability and guilt and his or her unwillingness to come forward are particularly acute when the abuser is a parent.”Footnote 98 Further, victim statements recounting the abuse suffered may, depending on state law, be considered hearsay and therefore inadmissible at trial.Footnote 99 However, despite the difficulties, in many cases abuse, whether physical, sexual, or emotional, can be proved.Footnote 100 In many cases, the plaintiff or prosecutor may rely on expert testimony speaking to the characteristics and common behavioral traits of sexually abused children.Footnote 101 Of course, the strongest cases are those with additional witnesses – and it is plausible a co-parent, friend, or relative could have witnessed the abuse. Such witnesses may be able to testify to what they saw or provide additional evidence of the abuse.
III. The Prevalence and Underlying Causes of Suicide
The evolving view of liability in suicide cases is due, in large part, to increasing understanding of the underlying causes of suicide. This Section will first discuss the social science statistics associated with suicide in the United States, before exploring internal causes, such as mental or physiological causes, and external causes. External causes to be considered in detail include parental failures or refusals to assist a struggling child, direct abuses by a parent, or parental negligence enabling access to methods of suicide.
a. Why do people commit suicide?
Globally, suicide claims over 800,000 individual lives each year – a rate of roughly one death by suicide every 40 seconds.Footnote 102 In 2018, over 48,000 people in the United States died by suicide.Footnote 103 While this distressing number reflects a peak in suicides over the last few years,Footnote 104 it is but one year in a trend that has seen a roughly thirty-five percent increase in suicides since 1999.Footnote 105 Now, suicide is the tenth most common cause of death in the country.Footnote 106 Perhaps more alarming is that suicide jumps to the second most common cause of death in younger age groups.Footnote 107 In 2019, 1,646 individuals under the age of 18 killed themselves – a rate of nearly five suicides per day in this age group – accounting for 15.6% of all deaths of minors.Footnote 108 In other words, roughly one out of every seven minor deaths was a suicide. This included 534 suicides of children aged ten to fourteen.Footnote 109 Roughly, that covers children between fifth and eighth grade. These are young children who will never attend high school. Further, clusters of suicides are more common amongst young individuals rather than adults.Footnote 110 Indeed, high profile suicides may lead to an uptick in suicidal tendencies within a community.Footnote 111
Some factors underlying suicide stem from inside the individual’s brain – from the chemical workings of their body. These factors are, by all outward observations, strictly “internal.” Other factors originate outside the mind, beginning with the individual’s experiences. These can be considered “external” to the deceased. While, ultimately, suicides are the decision of the deceased individual – the internal factors control – it is impossible and irresponsible to deny, despite the traditional legal view, that a plethora of external factors may have contributed to this decision and, ultimately, the death as well.Footnote 112 In fact, some experts have called for a linguistic shift from the traditional phrase “committed suicide,” towards more neutral phrases such as “died by suicide.”Footnote 113 While primarily this shift would serve to remove some of the stigma associated with suicide,Footnote 114 it also clearly follows the notion that there may have been factors external to the individual that contributed to the death.Footnote 115 The phrase “they died by suicide” is more aligned, linguistically and in implication, with the phrase “they died in a car accident,” for example, wherein fault cannot be gleaned from the statement alone and there is no implication of total responsibility on any one party.
Understanding the interplay between internal and external factors, therefore, is crucial when considering the prospect of liability following a suicide.
b. Internal Factors: Mental Illness and the Adolescent Mind
The internal factors underlying suicide are those that originated in the mind of the suicidal individual. For example, mental illness – particularly depression - is a well-documented aspect in the decision to take one’s own life.Footnote 116 In fact, roughly sixty percent of all individuals who die by suicide suffer from a mood disorder, including major depression disorder.Footnote 117 Depression can be effectively treated through therapies such as cognitive behavioral therapy (“CBT”) and dialectical behavior therapy (“DBT”), among other treatments.Footnote 118 Of course, no treatment is guaranteed to fully eliminate the risk of suicide in children and teens, but access to these treatments have been shown to assist and successfully dissuade individuals contemplating ending their own life from actually attempting or going through with their plans.Footnote 119
When considering minor suicide, specifically, it must be noted that the way the human brain develops leaves adolescents especially vulnerable to emotional distress.Footnote 120 Adolescence, in particular, is a developmental period characterized by dramatic changes in affect regulation due to underlying neurological processes.Footnote 121 Specifically, the areas of the brain regulating emotion as well as the “executive section of the brain” remain underdeveloped in an individual’s brain well into one’s twenties.Footnote 122 Youths are subjected to the experience of increasing emotional impulses stemming from “response regions” such as the hippocampus and amygdala before their “control regions” within the prefrontal cortex are fully established.Footnote 123 This tendency towards emotional dysregulation can affect many aspects of the child’s life, including, for example, their education.Footnote 124
c. External Factors: Fact Patterns to Consider
1. Parental Refusals to Obtain Help; Obstruction of Potentially Life-Saving Measures, Including Therapies
Whether due to stigma or discrimination, lack of access, or deficiencies in knowledge of the treatability of mental health issues and illnesses, 67% of individuals suffering from mental illness in the United States, including youths and teens, go without mental health treatment by healthcare staff.Footnote 125 In many cases of minor suicide, the deceased child sought assistance from their parent – and their parent refused to help.Footnote 126 Perhaps the most common variation of this situation would be where the parent failed or refused to procure potentially lifesaving therapy services.Footnote 127
Taking the first step in seeking mental health help can be an enormous challenge in and of itself.Footnote 128 Those in need of help may themselves consider therapy something only “crazy people” need – a label that a child suffering from anxiety or depression will surely seek to avoid.Footnote 129 Then, when therapy is refused by someone as influential as a parent or guardian, the shame that can follow can exacerbate these underlying stigmas and compound the feeling of helplessness, hopelessness, and fear.Footnote 130 This growing shame, paired with the underlying depression, anxiety, other mental illness, or substance abuse at issue, still untreated, may increase the likelihood that the child chooses to die by suicide.Footnote 131
Indeed, most states require parental consent before a minor can enroll in therapy services.Footnote 132 These laws create the potential for parents to refuse consent for any reason, leaving the child untreated and often worse off than before they sought help.Footnote 133 While there has been a movement away from this parental consent requirement in some states, the consent requirement continues to provide a barrier to many children and teens seeking help.Footnote 134
In some cases, it is the teens seeking mental healthcare themselves that are leading the drive against parental consent laws.Footnote 135 In 2016, student activists affiliated with the Boys & Girls Club in New Jersey earned a huge victory when the “Boys & Girls Club Keystone Law”Footnote 136 was signed into law.Footnote 137 The new law “allows minors [sixteen years old and older] to consent to temporary, outpatient, behavioral-health-care services for the treatment of mental illness or emotional disorders” without authorization by a parent or guardian.Footnote 138 Importantly, if a minor seeks treatment under this law, the rules of confidentiality in treatment apply as if the patient were an adult.Footnote 139 This means that information about the child’s mental state and treatment cannot be disclosed to their parents without the child’s consent, often a necessary condition for at-risk youth to willingly seek help.Footnote 140 The landscape of adolescent privacy laws in other states is varied and inconsistent, with some states lacking explicit laws on the topic altogether.Footnote 141
Treatment refusals by parents or guardians may stem from a lack of understanding of what therapy is and what it can accomplish.Footnote 142 There are many different kinds of therapy currently in use by therapists and psychologists.Footnote 143 In fact, many practicing therapists may draw from multiple theories of psychotherapy across their practice and even within a single session with a patient.Footnote 144 Broadly speaking, the five categories of therapy techniques include: (1) psychoanalysis and psychodynamic therapies, (2) behavior therapy, (3) cognitive therapy, (4) humanistic therapy, and (5) integrative or holistic therapy encompassing and combining the preceding four categories into an adaptive approach.Footnote 145 Given this complex landscape of overlapping techniques and theories, it is important that the patient, or their parents, if involved, understand the techniques and goals of therapy.Footnote 146 This understanding must go beyond the initial choice of therapist, evolving to match a minor patient’s ongoing needs.Footnote 147
A broad range of factors may underlie a parent’s failure to procure the requested treatment.Footnote 148 Some considerations are unavoidable, such as monetary concerns or geographical and transportation barriers to therapy access. Others, however, may stem from the parent’s own perception of therapy or fear of what others may think. Footnote 149 As noted, parental medical decision making is often given great deference by the legal system.Footnote 150 However, states are often able to intervene if the decision making threatens the life of the child.Footnote 151 By the time this happens, if it happens at all, it may be too late.
2. Abuse by a Parent
Another tragically common factor underlying a child’s decision to take their own life could, potentially, be ongoing or acute abuse enacted on the child by a parent or guardian.Footnote 152 Social science studies have definitively shown that sexual, physical, and emotional abuse of a child, as well as physical and emotional neglect, or a combination of abuses and neglect, are associated with higher rates of attempted suicide as a minor and later in life.Footnote 153 This correlation is particularly alarming when viewed in conjunction with the fact that 12.5% of children in the United States will experience some form of childhood maltreatment by the time they turn eighteen.Footnote 154
Abuse or neglect of a child can result in immediate injuries that may heal over time, but can also result in lifelong physical and mental harm.Footnote 155 Abuse victims may be at greater long-term risk for physical maladies including and as varied as diabetes, lung disease, cancer, or chronic fatigue conditions.Footnote 156 Given that chronic illnesses likewise coincide with increased rates of suicidal ideation, attempts, and completion, the ongoing risk to abused youth is clear.Footnote 157 Notably, child abuse and neglect has been associated with defects in the formation of areas of the brain such as the amygdala, hippocampus, orbitofrontal cortex, and corpus callosum, among others.Footnote 158 As previously stated, these regions of the brain are crucial to healthy emotional regulation, learning and memory, decision-making, and arousal.Footnote 159 Further, childhood maltreatment increases the risk of depression, anxiety, and post-traumatic stress disorder, and may lower the effectiveness of antidepressant treatments later in life.Footnote 160 Even outside the tangible, diagnosable, and quantifiable mental and physical effects of child abuse, it is impossible not to note the sheer horror of these experiences.Footnote 161
In addition to abuse at home, bullying by peers at school or related contexts is likewise a well-documented factor contributing to the alarming rates of child suicide.Footnote 162 While the focus of this Note is the role of parental figures and legal guardians as external factors in the suicide deaths of minors, rather than classmates and peers, it is worth noting that the effects of bullying may show up as warning signs at home.Footnote 163 For example, Daniel Scruggs was the target of continuous teasing and vicious bullying prior to his death.Footnote 164 As a result, Daniel would intentionally soil himself as a way to avoid attending school or to be sent home early.Footnote 165 All told, Daniel was absent forty four days during the school year before his suicide.Footnote 166 His mother, Judith, failed to respond to this warning signs, however; there was “no therapist, and no intervention targeting [Daniel’s] hygiene.”Footnote 167 This kind of neglect in failing to identify a child’s reaction to bullying functions similarly to more direct abuses at home when considering external causes to minor suicide.
3. Parental Negligence Allowing Ease of Access to Method of Suicide
Given the lack of control most minors have over their own lives, access to certain items may determine how individuals will attempt to end their life.Footnote 168 Indeed, the vast majority of suicides committed by minors occur in their own home – usually in the child’s bedroom.Footnote 169 The most common method of suicide is by hanging at 78.4% of minor suicides, likely due to ease of access of necessary materials without the negligence of others.Footnote 170 The next most common method, with the top two methods accounting for nearly all minor suicides, is by firearm.Footnote 171 Alarmingly, but unsurprisingly, in all cases where firearm storage method was known, the firearm in question was not stored safely by the owner.Footnote 172 In every case where such information was available, it was irresponsible firearm ownership that provided the minor access to the deadly weapon they ultimately used to take their own life.Footnote 173
Advocates of safe firearm ownership describe proper storage as keeping the gun, unloaded, in a locked location inaccessible from children.Footnote 174 Such guidelines also encourage the use of trigger locks, cable gun locks – a chord strung through the barrel of the weapon and locked in a loop to prevent loading and firing – as well as storing different parts of the weapon separately, if possible, along with separate storage of ammunition.Footnote 175 These precautions are especially crucial when a gun owner lives with someone with a history of mental illness or suicidal ideation, able to prevent both accidental and intentional deaths.Footnote 176
In many states, statutory law makes irresponsible gun storage a criminal offense.Footnote 177 For example, Massachusetts, which boasts the lowest gun death rate in the country, requires guns be stored in a locked container or otherwise rendered inoperable by a lock.Footnote 178 Violations of this statute can result in a fine between $1,000 and $7,500 along with imprisonment up to one and a half years.Footnote 179 In cases of high capacity weapons, fines can reach $15,000 and imprisonment up to twelve years.Footnote 180 Similarly, New York mandates storage of firearms in “an appropriate safe storage depository” or otherwise rendered unusable for all individuals residing with children under the age of eighteen.Footnote 181 Failure to follow these guidelines is a misdemeanor, Class A,Footnote 182 punishable by a fine up to $1,000 and imprisonment of up to one year.Footnote 183 Relatedly, New York’s gun death rate of 3.9 per 100,000 is the second-best rate in the country. By contrast, Mississippi, Alaska, Louisiana, Mississippi, and Alabama, among others in the south and west of the United States, have no laws pertaining to safe storage of firearms whatsoever.Footnote 184 Mississippi’s gun death rate is 24.2 per 100,000, Alaska’s is 22.4 per 100,000, Louisiana’s is 22.1 per 100,000, and Alabama’s is 22, representing some of the worst rates in the country.Footnote 185
At the federal level, congressional representatives DeLauro, Larson, Hayes, Courtney, and Himes introduced a bill known as “Ethan’s Law” in February of 2021.Footnote 186 This bill, if enacted, would make it unlawful to store firearms in such a way that “a minor is likely to gain access to the firearm without the permission of a parent or guardian.”Footnote 187 The bill reflects the law passed under the same name in Connecticut,Footnote 188 which arose when a minor, Ethan, was accidentally shot and killed by an unsecured gun at a neighbor’s house.Footnote 189 Since passage of Ethan’s Law, Connecticut’s gun death rate of 5.3 per 100,000 ranks sixth best in the country.Footnote 190 The federal version of the bill, however, has not proceeded since its introduction before the House of Representatives.Footnote 191
The would-be federal law notes that an estimated 4,600,000 children live in a home that contains at least one unsecured firearm.Footnote 192 Likewise, the bill states that 73% of children under the age of ten reported knowing where their parents stored their firearms.Footnote 193 36% of those children had handled unsecured firearms in the home.Footnote 194 Given these statistics as a backdrop, Ethan’s Law points to the increased risk of youth suicide as well as other dangers posed by unsecured guns and ammunition – accidental deaths as well as firearm theft.Footnote 195 Violations of the law, generally, would result in fines up to $500.Footnote 196 However, should a violation result in an injury or death of a minor, the penalty could include up to five years of imprisonment.Footnote 197
IV. Ensuring Liability beyond the Restatement Approach
The general trend in tort law is one away from the suicide rule and towards the Restatement view of scope of liability. While this is the appropriate response in most cases, child suicides are a particularly tragic occurrence and should be treated as the special cases they are. The law should do everything in its power to cut down the alarming suicide rates among minors, including wielding potential liability as a deterrent of certain conduct, or to encourage other actions. This section will begin by discussing the need for liability, before putting forth a solution in greater detail.
a. The Need for Suicide Liability
Adam Tonn’s death was deemed “unforeseeable,”Footnote 198 making legal action impossible even under the modern Restatement approach to legal causation and scope of liability. However, tragedies of this kind are hardly rare. Footnote 199 Countless children and teens in the United States suffer from depression, anxiety, or similar and related mental illnesses every day. Others suffer bullying at school or physical, sexual, or emotional abuse or neglect at home at alarming rates. In many cases, these children, in their desperation, will seek help – oftentimes from their parent, stepparent, caretaker, or legal guardian. How parents and guardians react to crisis situations – and how they react to requests for help, specifically – can be extremely formative, influencing the child’s long-term health and well-being.
For a number of reasons, the necessary help may never come. Perhaps for their religious, moral, or (incorrect) scientific beliefs, their parent will refuse to arrange for needed therapies or medication. Perhaps the parent will shame the child for what they are experiencing, claiming depression is “all in their head” or easy to cure by simply “cheering up,” changing their outlook on life, or spending more time outside – actually making matters worse by instilling feelings of guilt in the child and furthering the child’s confusion. In other instances, the parent’s general neglect or more direct abuses, whether it be physical, sexual, mental, or emotional, may be underlying or exacerbating factors contributing to the child’s mental distress. In cases such as Adam Tonn’s, ease of access to deadly weapons or prescription medications caused by a parent or guardian’s negligence may increase the likelihood any suicide attempt will be successful. In all too many cases, the lives of these children will end before they reach adulthood.
Parents, relatives, and friends of the deceased child will surely be left feeling shocked, lost, and hopeless. Further, the parent or parents, described above, that failed or refused to obtain necessary treatment, or more directly contributed to the child’s desperation through emotional or physical abuse, neglect, or other negligence will face no consequences before the law. Indeed, in many cases neither criminal nor civil law provides an answer. When, as in many cases, the statute of limitations has run on the abuse or the refusals, failures, or neglect of a parent do not rise to criminal levels, while still contributing to the child’s mental distress, there will be no criminal repercussions for the abusive or neglectful parent. In the absence of criminal ramifications, friends and family members may want to seek remedy in tort. Specifically, one parent may want to bring a wrongful death suit against the other parent who they believe was at fault or contributed to their child’s suicide through abuse or neglect.
On the one hand, the Restatement approach at least opens the possibility of liability in cases of suicide by making obsolete previously contemplated barriers to legal causation.Footnote 200 However, the issue of foreseeability will continue to pose a barrier to liability.Footnote 201 Take, for example, the facts of the Tonn case. On the one hand, the Restatement view negates the idea that the suicide is itself, inherently and in every case, an intervening cause breaking the chain of causation as to any third party.Footnote 202 However, “The psychologist Adam had twice seen for behavioral issues also reported that Adam had shown no signs of depression and had given ‘no indications’ that he would commit suicide.”Footnote 203 A jury would likely find his death unforeseeable as a matter of fact, and the harm caused would be viewed as out of the scope of liability of the negligent gun storage. Such negligence would go unanswered.
Potential parental or guardian liability in the wake of a child’s suicide would not, of course, truly remedy the tragedy that occurred.Footnote 204 However, parental liability suits might serve a purpose analogous to the theory wherein medical malpractice suits serve to improve medical care for other patients in the future.Footnote 205 In other words, parental liability in high profile wrongful death suits might serve to educate the public on suicide prevention measuresFootnote 206 and support efforts to make such prevention efforts more ubiquitous across parents in an attempt to limit future child suicides.Footnote 207 Additionally, the potential for wrongful death liability following a suicide could open the door towards some modicum of justice regarding underlying abuse or neglect otherwise barred from legal remedy - for example, due to the running of the statute of limitations.Footnote 208
b. Solution to Consider: Assuming Foreseeability in Certain Circumstances
As noted, the Restatement approach provides an avenue for third parties to be held liable in tort in some cases of suicide, but not all. Minor suicides are particularly alarming, and liability is all the more desirable as a result. In order to truly yield justice after minor suicide, as well as to serve the purposes of deterrence and raising awareness, liability must be ensured in certain egregious cases. There are a number of situations where certain activity – or intentional inactivity – by a parent, guardian, or similar should, on its own, allow liability even if the suicide was not otherwise determined to be foreseeable. In other words, suicide should always be considered a foreseeable result of certain conduct instead of being put to a case-by-case jury analysis.
As proposed here, if plaintiffs and prosecutors are able to establish that a parent or guardian refused requests for help or neglected to respond to warning signs of suicide, abused the child physically, emotionally, or sexually, or was negligent in enabling the method of suicide, there will be no need for a jury to consider whether the child’s suicide was a foreseeable result of the conduct. Instead, the foreseeability piece will be a given as a matter of law, allowing remedy in tort. If evidence of these activities and inactivity can be established, there should be no burden on the plaintiff to prove the harm was one of the risks making the conduct unreasonable – that would be assumed.
The list contained within this Note covering parental refusals and neglect, abuse by a parent or guardian, and parental negligence as to accessing the method of suicide is not intended to be exclusive nor exhaustive. Instead, these are areas the courts should consider as initial thresholds towards expanding liability following the suicide of a minor. In other words, courts should consider external causes of child suicide comfortably established by social science as opposed to strictly viewing suicide as a phenomenon with a purely internal cause. As previously noted, the most common example of such suits would likely be one parent or guardian bringing a wrongful death action against another parent or guardian as in the Tonn and Laytart cases, relying on this theory to establish liability. Of course, it is not impossible for both parents to be jointly culpable in refusals to provide necessary assistance to a child in crisis, parental abuse, or negligence regarding the method of suicide used, with liability divided following traditional tort law principles.
In the first example, parental refusals to obtain help, the threshold facts would need to be egregious to trigger an assumption of scope of liability. Courts should seek testimony establishing repeated requests on the part of the child and the existence of other ongoing warning signs. Direct parental abuse, on the other hand, may prove easier to establish. Any factual proof of abuse as defined by federal law and state regulation would be sufficient to trigger the foreseeability assumption. In other words, suicide should automatically be considered a foreseeable result of parental abuse. Finally, evidence of the kind put forth in the Tonn case would be adequate to allow the assumption to apply. Indeed, many states have passed gun storage requirements, the violation of which could serve as prima facie evidence that the necessary underlying conduct had occurred.
Under the theory proposed in this Note, simply proving that certain conduct including parental refusal to obtain help, abuse by a parent, or parental negligence as to method of suicide occurred will be enough to satisfy foreseeability element of a scope of liability analysis within a wrongful death or similar tort suit much like the processes utilized in res ipsa loquitur, strict liability, and per se theories of liability. This will serve to encourage access to suicide prevention such as therapies or substance abuse intervention before irreversible damage is done. Indeed, in order to best serve the public policy goal of parental education on child suicide and its causes, the situations that will trigger the assumption must be based on established contributors to child and teen suicides.Footnote 209
In practice, this shortcut to liability would hinge on a logical analysis based on the facts established leading to a practical legal conclusion. For example, this Note is not suggesting that evidence of a parent’s negligent firearm storage should be brought in when the cause of death was suicide by hanging or drug overdose – the lack of factual causation there is clear. Nor should the assumption of legal causation be treated as strict liability, exactly. Instead, this solution appeals to the logical assumption that therapies and other intervention could have made a difference, for example, and therefore negligent failure to provide such intervention should be actionable without making the often-volatile scope of liability argument.
This Note acknowledges this solution may appear extreme on first blush, but is rather simply the next step in the evolving tort structure as well as changing views of mental health and suicide. After all, suicide of minors should be treated as the extreme that it is – a widespread tragedy. Children under the age of eighteen take their own lives at a rate of five deaths per day – roughly one out of every six deaths in this age group is a suicide.Footnote 210 This alarming rate is only increasing. The adults that let these children down prior to their deaths should be held accountable. To that end, sacrificing the case-by-case causation analysis is warranted. The rule, instead, will be simple: suicide is always the foreseeable result of this conduct, and therefore liability is warranted.
V. Conclusion
The prevalence of suicide among children and teens is alarming – and increasing. There is no single solution to addressing this widespread issue. After all, there is no single cause of suicide, and each death will prove different. However, the legal system is in a unique position to influence public perception of suicide by shifting the potential for liability following a suicide death. In the criminal context, this has already been contemplated in the Scruggs and Carter cases. However, tort suits like the Tonn case have failed to provide liability and accountability for the underlying causes of suicide. By treating the suicide of a child as an extreme case and assuming foreseeability to place the harm of suicide within the scope of liability when a parent or guardian has acted in a certain way, courts would be saying: “This death was not just the fault of the child.” This is an important consideration in fighting the underlying causes of suicide in order to make sure fewer and fewer children lose their lives in this tragic manner.
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