There is a notable torts verdict in Maryland where a jury handed down a multi-million dollar verdict against Walmart for selling a shotgun to an employee who used it to commit suicide. The verdict raises difficult questions over Walmart’s responsibility for the suicide of Jacob Mace, who lied to store employees, under common law torts.

The family of Mace brought the lawsuit, alleging that Walmart employees knew that he was suicidal and struggling with mental health issues. They focused on his communications with a co-worker Christina O’Shea in which he wrote about feeling “broken” and “nothing helps. I just want it to end. Goodbye.” He also wrote that he intended to “Slit wrists. Buy a gun.”

O’Shea told assistant manager, Brennan Jones, about her concerns. Jones said that police should be called and, when Mace returned to work, spoke to Mace about the company’s counseling services and asked him how he was doing. He told him that “You know, we were worried about you,” but Mace assured him that he was fine.

Neither Jones nor O’Shea was involved in selling the gun to Mace. The sale was made by Eric McLaughlin, who testified that he had no idea of Mace’s mental health struggles. Mace told McLaughlin that the gun would be a present for his wife.

The family argued that Jones should have alerted other store managers about the conversation between O’Shea and himself. Moreover, the awareness of employees like Jones was then attributed to the company as a whole.

I find the verdict concerning on a number of levels. First, employers have to straddle a difficult line between protecting employees’ privacy and addressing threats to employees or the public. In this case, Mace insisted that he was doing fine and Jones had taken steps to confirm his status.

Second, Mace lied to the Walmart employee. There was no reason why McLaughlin would refuse the sale.

The case reminds me of Tarasoff v. Regents of University of California, which I teach in my torts class. In the 1974 case, Prosinjit Podder, an Indian Graduate student at Berkeley, fell in love with Tatiana Tarasoff. When she stated that she wanted to date other men, Podder went to counseling at the University Health Service and was treated by psychologist, Dr. Lawrence Moore. When he told Moore that he wanted to get a gun and kill Tarasoff, Moore sent a letter to campus police, who interviewed Podder and decided that he was not a risk. Podder then went ahead and murdered Tarasoff.

Justice Mathew O. Tobriner held that “… the confidential character of patient-psychotherapist communications must yield to the extent that disclosure is essential to avert danger to others. The protective privilege ends where the public peril begins.”

As a result, the hospital was held liable for the criminal actions of a third party — something that usually (but not always) cuts off proximate causation. It also rejects strong arguments made by doctors that such liability would create a chilling effect on counseling. A large number of patients often express their anger by focusing it on individuals and stating an intent to “kill that guy.” In the vast majority of such cases, the open disclosure allows the matter to be addressed and defused. However, if the patient knows that the doctor will have to tell authorities, such feelings are less likely to be expressed and addressed.

In this case, you have a retailer with an employee who expressed suicidal ideations. Jones did the right thing in seeking police involvement and then personally speaking with Mace. According to this verdict, the store should have barred the purchase. But for how long? What steps are necessary to satisfy this duty?

As with Tarasoff, there is no clear line on what employers should do and when they should do it.

The Second Amendment protects the right to gun ownership, though that right is not absolute. Additionally, this employee has privacy rights. Indeed, a memo to all employees could have been the subject of a different tort action for the disclosure of embarrassing private information, negligent infliction of emotional distress, or other claims.

From the perspective of Jones, he had one employee who expressed concerns over another employee’s mental health. He spoke to the second employee, who assured him that he was doing fine. Under these circumstances, Mace could have purchased the gun from any other store.

This is a tragic case, and it may be difficult to overturn on appeal. I understand the family’s anger that more was not done to save Mace from himself. I am unsure of how far the store could have gone. Jones would have needed to tell all employees not to sell Mace, any sharp objects, guns, or products capable of inducing overdoses or harm. That could trigger a lawsuit. If he fired or suspended Mace, he might be sued under disability laws.

If he did fire or suspend Mace, it is not clear that a gun sale could be withheld without something more than the word of a friend when the individual is denying such ideations. The right move is to seek police intervention, which Jones suggested.

The complaint does allege that Walmart had a “blacklist” for individuals who were suspected of any mental problems. If so, that does raise a legitimate question about why Mace was not added to the list, at least as a precautionary matter. However, these are difficult and fluid circumstances for a manager to address, particularly in a relatively short time period.

The jury awarded approximately $2.5 million in economic damages and $8 million in non-economic damages. Those damages may be reduced due to state caps on non-economic damages.

Here is the complaint in the case: Brady v. Walmart