A couple of bizarre recent cases raise a question that we occasionally discuss in my torts class: the liability for suicidal acts, particularly jumping from buildings. This week, a 31-year-old man jumped from a high-rise in Jersey City, New Jersey and landed on a BMW. The car was heavily damaged but he was able to walk away after plunging nine floors.
A witness said that the man stood up and asked “what happened?”
What happened was that he landed on roof of the car and fell through the sun roof.
The witness took photos and videos of the aftermath, including graphic footage of the man who was soon screaming in pain. He initially refused help and said that he wanted to die.
Recently, a man jumped from a parking garage in San Diego, Calif., and landed on a woman who was walking with a date below. She was killed but he initially survived. He later died at the hospital.
These cases raise the question of whether a suicide survivor (or a decedent’s estate) can be sued for intentional or negligent acts.
Intentional torts can be based on either actual intent or reckless conduct. A suicidal jump is clearly reckless. Likewise, intentional infliction of emotional distress can be based on an individual who throught “extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.”
A suicidal jump is also clearly negligent. RESTATEMENT (SECOND) OF TORTS § 283B (1965) (“Unless the actor is a child, his insanity or other mental deficiency does not relieve the actor from liability for conduct which does not conform to the standard of a reasonable man under like circumstances.”). Indeed, as an unlawful act under most state laws, it is negligent per se.
The most obvious defense is insanity, but that is not widely accepted as a defense to an intentional tort or negligent tort.
The basis for this rule is often expressed to (1) guarantee that victims are “made whole” for injuries by the accused or guardians of the accused and (2) avoid the abuse of such a defense by those who feign mental illness. There are also rationales for giving incentives to families and guardians to take precautions to protect other’s from unstable loved ones.
States can differ in their approaches, though most follow this rule. In my class, we often discuss the Wisconsin Supreme Court’s ruling in Breunig v. American Family Ins. Co. where the defendant caused a crash when she had a delusion that she could fly like Batman — resulting in a head-on collusion. (This may have been conclusive proof of insanity since Batman cannot in fact fly). The court noted:
“We think the statement that insanity is no defense is too broad when it is applied to a negligence case where the driver is suddenly overcome without forewarning by a mental disability or disorder which incapacitates him from conforming his conduct to the standards of a reasonable man under like circumstances. These are rare cases indeed, but their rarity is no reason for overlooking their existence and the justification which is the basis of the whole doctrine of liability for negligence, i.e., that it is unjust to hold a man responsible for his conduct which he is incapable of avoiding and which incapacity was unknown to him prior to the accident. . . . All we hold is that a sudden mental incapacity equivalent in its effect to such physical causes as a sudden heart attack, epileptic seizure, stroke, or fainting should be treated alike.”
The lack of an insanity defense or a “subjective standard” has long been criticized by legal experts, including my late colleague David Seidelson. See David Seidelson, Reasonable Expectations and Subjective Standards in Negligence Law: The Minor, the Mentally Impaired, and the Mentally Incompetent, 50 GEO. WASH. L. REV. 17, 38-44 (1981) (calling the tort standard for mentally ill “almost facially unfathomable” and arguing for adoption of subjective standard).
Notably this barrier is largely lifted for children who are compared to a reasonable “child of like age, intelligence[, capacity] and experience,” which can include mental disabilities. RESTATEMENT (SECOND) TORTS § 283A (AM. LAW INST.1965).
Thus, under the common law, a suicidal person or the estate of that person can be sued for damages or deaths caused by a suicidal act, including the recent wrongful death in San Diego. Likewise, the New York jumper can be liable for the damage to the car after he recovers. He can also be liable for the emotional distress in some cases.
However, absent a physical injury, New York limits negligent infliction of emotional distress claims to “immediate family members” who are bystanders. Thus in Trombetta v. Conklin, 82 N.Y.2d 549 (1993), the plaintiff was the adult niece of a woman who was killed. However, she was not deemed an immediate family member under the New York standard. A stranger would obviously also be barred from recovery on the basis of being a pedestrian.