Indiana Law Review


University Liability When Students Commit
Suicide: Expanding the Scope of the

Special Relationship

Heather E. Moore

Introduction

In recent years there has been a significant increase in the number of suicides

occurring on college campuses. Statistics reveal that more than one thousand

suicides occur on campus every year,
1

and media reports indicate that no

institution is exempt.
2 As depression and suicide become more prevalent on

college campuses, it is expected that suicide will replace binge drinking as the

"number-one student risk factor in the minds of most college administrators."
3

The legal significance of the issue is evidenced by the dramatic rise in

lawsuits directed at universities.
4 As universities have become more vulnerable

to liability in general, student suicide liability is one of the areas that universities

have watched closely.
5

Recent decisions have further created uncertainty

regarding the legal responsibility of universities and have compounded the

concern regarding suicide liability.
6

Although a special relationship between two parties may establish a duty to
prevent the other from committing suicide, until recently, a finding of a special

relationship has been limited to a narrow class of persons including mental health

clinicians or those entrusted with the custodial care of another. In Shin v.

Massachusetts Institute of Technology, the court expanded these limitations and

identified a special relationship between non-clinician university administrators

*. J.D. Candidate, 2007, Indiana University School of Law—Indianapolis, B.A., 2001,
Wheaton College, Wheaton, Illinois.

1. Health and Human Development Programs, New Report Offers Blueprint for Suicide

Prevention on Campuses, HHD STORIES, Oct. 2004, http://hhd.org/hhdnews/hhdstories/fs_10_
2004b.asp.

2. See, e.g., Eric Lipton, Second Suicide Leap Leaves New York University Shaken, N.Y.

Times, Oct. 12, 2003 (reporting a recent suicide at New York University); see also Ted Ross &
Jesse Rogers, After Suicide, Campus Reaches Out, THE DAILY PENNSYLVANIAN, Oct. 14, 2005

(discussing a Wharton student's suicide).

3. See Peter Lake & Nancy Tribbensee, The Emerging Crisis of College Student Suicide:
Law and Policy Responses to Serious Forms ofSelf-inflicted Injury, 32 STETSON L. REV. 1 25, 1 25

(2002).

4. See Eileen M. Evans & William D. Evans, Jr., "No Good Deed Goes Unpunished":
Personal Liability of Trustees and Administrators ofPrivate Colleges and Universities, 33 TORT

& Ins. L.J. 1107,1107(1998).
5. See Eric Hoover, Judge Rules Suicide Suit Against MIT Can Proceed, 51 CHRON. OF

HigherEduc. 49, Aug. 12, 2005, at Al (commenting that the recent Shin case is "stirring concerns

among some college officials that the case heralds a storm of wrongful-death litigation"); see also

Marcella Bombardieri, Lawsuit Allowed in MIT Suicide, BOSTON GLOBE, July 30, 2005, at Bl.

6. See Hoover, supra note 5.



424 INDIANA LAW REVIEW [Vol. 40:423

and a student who committed suicide on campus. The court held that the parents
could proceed with their lawsuit against the administrators which alleged

negligence in the failure to prevent their daughter's suicide.
7

Shin remains a

decision of a trial court that was ultimately settled out of court in April 2006,
8

prior to a definitive holding on appeal. However, it nonetheless "does suggest

that the legal landscape has changed" and that universities and non-clinician

administrators are entering an era where potential liability is more expansive.
9

Prior to the lower court's decision, one MIT administrator was quoted: "If we
don't [win], it has implications for every university in this country."

10

This Note will analyze the impact of finding that universities and university

administrators have a special relationship with students that establishes a duty to

prevent them from committing suicide. Part I discusses the significance of this

issue in light of the prevalence of suicide on campus and the increasing litigation
involving universities. Part II traces the development of suicide liability,

discussing the trend of expanding university liability away from the immunity
they have historically benefited from. Part III explores the particular

circumstances which may give rise to a special relationship between universities
and students in light of relevant case law. Part IV offers suicide prevention

strategies and protocols to avoid suicide liability. Finally, Part V examines three
specific legal issues that universities will encounter as they develop plans for

suicide prevention. This Note concludes that as this area of law remains

uncertain, universities need to proactively shield themselves and their staff from

liability by developing plans and strategies that effectively address suicide

prevention on campus.

I. Relevance of Suicide Liability to Colleges and Universities

A. Increasing Litigation Involving Universities

Recently universities have become "an inviting target for a wide variety of
legal claims."

11 More specifically, the number of lawsuits involving student
suicide has also increased. It has been noted that "[f]ive years ago college

lawyers discussed among themselves perhaps one or two pending suicide cases
at any given moment. Today the cases total about 10 nationwide, with the

7. Shin v. Mass. Inst, ofTech., No. 02-0403, 2005 Mass. Super. LEXIS 333, at *36-37 (June

27, 2005).

8. See Marcella Bombardieri, Parents Strike Settlement with MIT in Death of Daughter,

Boston Globe, Apr. 4, 2006, at B 1 . (The parents and the university "now agree that the young

woman's death probably was an accident, not a suicide.")

9. Damon Sims, LegalIssues in StudentAffairs 2005 5 (Indiana Student Affairs Assoc,
Indiana University—Bloomington, Oct. 19, 2005).

10. Deborah Sontag, Who Was ResponsibleforElizabeth Shin ?, N.Y. TIMESMAGA INE, Apr.
28, 2002, at 57.

1 1

.

Evans & Evans, supra note 4, at 1 107.



2007] UNIVERSITY LIABILITY 425

prospect that many more suicides could, over time, move into the courts." 12

Contributing to the increasing amount of university-related litigation is the

public's perception of universities as wealthy organizations with infinite

resources. Several private universities now have large endowments and assets in
the billions.

13
Plaintiffs in search of "solvent defendants," will not hesitate to sue

universities.
14

It has been speculated that the "deep pocket[s]" of universities

combined with a "litigious society, and public cynicism about all charitable

institutions" will result in rising claims against institutions of higher education

and administrators in the years to come.
15

Further adding to the increasing number of lawsuits involving universities is
the demise of the doctrine of charitable immunity, opening the door to lawsuits

involving non-profit institutions. For a significant portion of the twentieth

century, colleges and universities enjoyed broad protection from lawsuits under

the doctrine of charitable immunity.
16
The doctrine of charitable immunity stems

from dicta found within two English cases.
17
While the English courts ultimately

overruled the dicta and held the charitable organizations liable, Maryland
18
and

Massachusetts
19
adopted the dicta and thus created a broad doctrine of charitable

immunity.
20 As of 1938, forty states had adopted the doctrine of charitable

immunity, which protected institutions including universities.
21

However, after

harsh criticism of the doctrine in 1942 "state courts moved rapidly away from
immunity."

22 By 1986, thirty three of the original forty subscribers to the
doctrine of charitable immunity had abandoned it in whole or in part.

23
Although

there are still several jurisdictions that recognize the doctrine in some form,
24

the

doctrine has generally been abandoned. Consequently, parties are not prohibited

from suing non-profit institutions.

B. Prevalence ofSuicide on Campus

Alarming statistics reveal that suicide is now "likely the second leading cause

1 2. Ann H. Franke, When Students Kill Themselves, Colleges May Get the Blame, 50 CHRON.

Higher Educ. 42, June 25, 2004, at B18.

13. Evans & Evans, supra note 4, at 1 107.
14. Id. at 1121.

15. Id. at 1108.

16. See id. at 1 108 (noting that the doctrine was in effect from the late 1800s until the mid

1900s).

17. Mat 1109.
18. See Perry v. House of Refuge, 63 Md. 20, 20-26 ( 1 885).

19. See McDonald v. Mass. Gen. Hosp., 120 Mass. 432 (1876).

20. Evans & Evans, supra note 4, at 1 109.
21. Id.

22. Id. (citing Rutledge's opinion in Georgetown Coll. v. Hughes, 130 F.2d 810 (D.C. Cir.

1942)).

23. Id.

24. Id.



426 INDIANA LAW REVIEW [Vol. 40:423

of death" among college students. 25 It is estimated that 1088 students commit
suicide on college campuses each year.

26
Furthermore, suicide rates have been

increasing "steadily among the young and nearly tripled between 1952 and
1995."

27
Despite these concerning statistics, the number of students successfully

committing suicide is only a mere fraction of the number of students attempting
and considering suicide.

28 The National College Health Risk Behavior Survey
determined that 10.3% of surveyed college students "had seriously considered

ending their own lives during the preceding 12 months."29 Additionally, 6.7% of
the surveyed students had developed suicide plans.

30

C. Students with Mental Illness on Campus

Beyond suicide, university administrators are also struggling to address an
"undergraduate population that requires both more coddling and more actual

mental health care than ever before."
31

Medical advances specifically in the form

of enhanced medication and psychotherapy have allowed many students suffering
from mental illnesses, including severe depression, schizophrenia, and bipolar

disorder to attend college.
32

Before the advent of such medications many of these
students were prevented from pursuing higher education.

33
While most of these

students are able to adapt to college life, it has been asserted that "there is still a

segment of this population that may be particularly vulnerable to the stressors
inherent in college."

34

Recent reports from counseling centers also confirm increasing numbers of

psychological illness on campus. Among the 274 counseling center directors
surveyed in the National Survey of Counseling Center Directors in 2001, eighty

five percent noted that they had experienced "an increase in severe psychological

problems among students" in recent years.35 These same counselors also reported

25. SuicidePrevention Res. Ctr., PromotingMentalHealthandPreventing Suicide

in College and University Settings 5 (Oct. 21, 2004) (Prepared for the Center for Mental

Health Services, Substance Abuse and Mental Health Services Administration, U.S. Department

of Health and Human Services).

26. Id.

27

.

Elizabeth Fried Ellen, Suicide Prevention on Campus, XIX PSYCHIATRIC TIMES 1 0, Oct.

2002, available at http://www.psychiatrictimes.com/p021001a.html (citing an undated published

report of the CDC).

28. Id.

29. Id.

30. Id.

3 1

.

See Sontag, supra note 10. Sontag notes that administrators are "scrambling to redefine

their relationship with parents and their role in the nonacademic lives of students who are adults

by many yardsticks, and yet not quite." Id.

32. See Ellen, supra note 27.

33. Id.

34. Id.

35. Id. at 2.



2007] UNIVERSITY LIABILITY 427

that they had experienced increased incidents of self-injury among college
students within the last five years.

36 As the number of students attending college
with histories of mental illness continues to rise, it should be expected that

incidents of depression and other mental illness will only make suicide more
prevalent on campus.

n. Suicide Liability

A. The Common Law Approach

Third party responsibility for another's suicide is a modern concept.
37

At

common law, suicide was viewed as an act of the individual and therefore courts
declined to impose liability upon third parties for failure to intervene.

38

Traditionally, American courts "categorically refused to find civil liability arising

out of a failure to prevent suicide."
39

"Suicide was considered an illegal,
deliberate, and intentional act" that was itself the sole proximate cause therefore

precluding the liability of third parties.
40

In the twentieth century, public

perception regarding suicide changed as medical advances revealed that suicide

was often the culmination of severe mental illness, rather than a deliberate and

criminal act.
41 As those committing suicide came to be viewed as victims of

mental illness, the liability regarding suicide softened as well. Situations were

identified where someone in close contact with the decedent could be found liable
for failing to prevent the suicide.

B. Modern Approach

The general rule remains that third parties are not liable when another inflicts
self-harm, but there are now two significant exceptions to the rule.42 Today, a
defendant can be held liable for the suicide of another if either of the following

two conditions is met: 1) if it is found that the defendant caused the suicide; or 2)
if it is found that the defendant had a duty to prevent the suicide from

happening.
43

The first exception, actual causation, is very limited, found only in

36. Id.

37. See Daniel W. Berglund, Case Note, Recent Decisions ofthe Minnesota Supreme Court:

Torts: Taking the "I" Out ofSuicide: The Minnesota Supreme Court'sAlarming Extension ofDuty

in "Exceptional Relationships
"—Sandborg v. Blue Earth County, 28 Wm. MlTCHELLL. Rev. 1 307,

1309(2002).

38. Id.

39. Lake & Tribbensee, supra note 3, at 129.
40. Id. at 129-30.

4 1

.

See Kate E. Bloch, The Role ofLaw in Suicide Prevention: Beyond Civil Commitment—A
BystanderDuty to Report Suicide Threats, 39 STAN. L. Rev. 929, 933 ( 1 987) (stating that the "most

cogent explanation of decriminalization lay in the belief that most suicides were caused by mental

illness").

42. See Lake & Tribbensee, supra note 3, at 130.
43. Id.



428 INDIANA LAW REVIEW [Vol. 40:423

rare circumstances generally involving physical abuse or torture that prompt the

decedent to commit suicide without actual consideration of his or her actions.
44

The second exception is more common. It "arises when the defendant has a
legally recognized special relationship with a suicidal individual sufficient to

create a duty to prevent suicide."
45

Mere knowledge that the decedent was in
danger has traditionally not been enough to impose a special relationship, and

subsequently a duty, to prevent the suicide.
46 The special relationship has

typically been reserved for custodial situations such as hospitals, jails, and reform

schools, where one party has full responsibility for the care of another.
47

Additionally, courts have identified special relationships between mental health

professionals and their patients because of their extensive training in mental

health care.
48

C. Universities and the Special Relationship

Universities and university employees and administrators have generally

avoided suicide liability because they have not been found to fall within either of

the exceptions to the general rule of no duty to prevent suicide.
49

Most

significantly, courts have narrowly applied the concept of the special relationship

to universities.
50

Although a special relationship between a school and student

has been identified on the secondary school level where schools stand in locus

parentis,
51

the independent nature of college students on campus makes them

distinguishable.
52

Institutions of higher education often pride themselves on

treating their students as adults, emphasizing the freedoms that the university and

administrators allow students to enjoy. Because college students are thought to

be self-sufficient, courts have not identified special relationships between them

and their respective institutions that would impose a duty to prevent suicide.

Professors Lake and Tribbensee discuss the protection that universities have

received:

44. Id.

45. Id. at 132.

46. See id.

47. See id. at 132-33.

48. /</. atl33.

49. See id. at 135.

50. See Hoover, supra note 5 (noting that "colleges and their employees generally have not

been held liable for student suicides").

51. In Eisel v. Board of Education of Montgomery County, the court held that "[middle]

school counselors have a duty to use reasonable means to attempt to prevent a suicide when they

are on notice of a child or adolescent student's suicidal intent." Eisel v. Bd. of Educ. of

Montgomery County, 597 A.2d 447, 456 (Md. 1991).

52. In Schieszler v. Ferrum College, the court discussing the doctrine of in locus parentis as

it related to Ferrum College said, "[t]he instant case does not involve a minor, and therefore, strictly

speaking, no duty arises from an in loco parentis relationship." Schieszler v. Ferrum Coll., 236 F.

Supp. 2d 602, 608 (W.D. Va. 2002).



2007] UNIVERSITY LIABILITY 429

The limited exceptions to the no-duty-to-prevent-suicide rule have
protected universities from liability for a student suicide in a broad range

of cases. Thus, for example, the mere fact that a student is depressed,

isolated or lonely, receives bad grades, is socially ostracized, or engages

in high-risk alcohol use does not itself impose a responsibility upon the

university to intervene to prevent suicide. Students are expected to

shoulder the stresses and burdens of the transition into the college

environment, even if those burdens are very high.
53

Jain v. Iowa
54

illustrates the traditional approach that courts have taken

towards universities regarding the special relationship. In Jain, the plaintiffs

son, Sanjay, committed suicide in his dorm room during his freshman year at the
University of Iowa. The plaintiff brought a wrongful death action against the
university claiming that his son's death "proximately resulted from university

employees' negligent failure to exercise care and caution for his safety."
55 The

plaintiff specifically claimed that the suicide might have been prevented had the

university followed its established policy of parental notification when students
exhibit self-destructive behavior.

56

Throughout his first semester Sanjay struggled academically and personally.
57

He faced disciplinary measures from the university for participating in a prank
and for smoking marijuana in his dorm room. Prior to Thanksgiving, resident
assistants were called to his dorm room where his girlfriend alleged that Sanjay
was planning to commit suicide by inhaling exhaust fumes from the motorized
cycle he had taken to his room. Sanjay admitted to making such preparations and

agreed to see a counselor.
58

Sanjay saw the counselor, Merritt, the next day and

he agreed to call her if he felt suicidal again. However, he declined to give her

permission to call his parents, and his parents were not notified of the incident.
59

Merritt reported to her supervisor that he appeared to be suffering from "tiredness

on his part [rather] than hopelessness or despair."
60

Subsequently, Sanjay went

home for Thanksgiving but exhibited no abnormal behavior and made no mention
of his struggles at school. He returned to school, but on December 4, was found
dead in his apartment from "self-inflicted carbon monoxide poisoning."

61

The district court held that there was not a special relationship between the
university and the student that created a duty to prevent Sanjay from committing

suicide.
62 On appeal the plaintiff claimed that the university's awareness of

53. Lake & Tribbensee, supra note 3, at 135.
54. 617 N.W.2d 293 (Iowa 2000).

55. Id. at 296.

56. Id. at 294.

57. Id. at 295.

58. Id.

59. Id. at 296.

60. Id.

61. Id.

62. Id. at 296-97.



430 INDIANA LAW REVIEW [Vol. 40:423

Sanjay's condition and need for medical treatment "created a special relationship

giving rise to an affirmative duty of care toward him."
63

Specifically, the plaintiff

relied on Restatement (Second) of Torts section 323:

One who undertakes, gratuitously or for consideration, to render services
to another which he should recognize as necessary for the protection of

the other's person or things, is subject to liability to the other for physical

harm resulting from his failure to exercise reasonable care to perform his
undertaking, if (a) his failure to exercise such care increases the risk of

such harm, or (b) the harm is suffered because of the other's reliance
upon the undertaking.

64

The Supreme Court of Iowa found that under section 323, "the defendant's
negligent performance must somehow put the plaintiff in a worse situation than
if the defendant had never begun performance."

65
Ultimately, the court held, "no

action by university personnel prevented Sanjay from taking advantage of the

help and encouragement being offered, nor did they do anything to prevent him
from seeking help on his own accord."66 The court affirmed the district court and
concluded that there was not a special relationship between Sanjay and the

university that obligated the university to prevent the suicide.
67

D. Expansion of the Special Relationship

Although the Jain decision is often still cited
68

and is arguably "the most

viable precedent"
69

regarding university liability when students commit suicide,
more recent case law indicates that the notion of "limited exceptions" may now
be "eroding" and that a special relationship could be identified in a broader set of

circumstances.
70

Since the Jain decision in 2000, the following two cases have

attempted to place greater responsibility on the university and administrators to

prevent student suicide and adopted a more inclusive framework for determining
when a special relationship exists.

In Schieszler v. Ferrum College
11

the tide first turned regarding suicide

liability and universities. In Schieszler, a 2002 decision of the United States

District Court for the Western District of Virginia, the court found that university

officials had a special relationship with a student that created a duty to prevent the

63. Id. at 297.

64. Restatement (Second) of Torts § 323 (2005).

65. Jain, 617 N.W.2d at 299.

66. Id. at 299.

67. Id. at 299-30.

68. See Hoover, supra note 5 (mentioning Jain while noting that not all "wrongful-death

lawsuits decided recently have . . . increased colleges' legal responsibilities").

69. Rob Capriccioso, Settlement in MIT Suicide Suit, INSIDE HIGHER Ed, Apr. 4, 2006,

http://insidehighered.com/layout/set/print/news/2006/04/04/shin.

70. Lake & Tribbensee, supra note 3, at 135.
71. 236 F. Supp. 2d 602 (W.D. Va. 2002).



2007] UNIVERSITY LIABILITY 431

student from committing suicide.
72

Frentzel was a freshman at Ferrum College

when he began exhibiting suicidal tendencies.
73 He wrote suicidal notes to his

girlfriend who consequently informed university officials including his Resident
Assistant, Holley, and the Dean of Student Affairs, Newcombe, of his behavior.
Holley and Newcombe persuaded Frentzel to sign a document promising that he
would not hurt himself and told his girlfriend that she could not go to his room,

but they took no further action.
74

Three days later Frentzel was found dead in his

room having hung himself. Frentzel' s guardian filed a wrongful death suit
against Ferrum College, Newcombe, and Holley, alleging that the defendants
"'knew or personally should have known that Frentzel was likely to attempt to
hurt himself if not properly supervised,' [and] that they were 'negligent by failing

to take adequate precautions to insure that Frentzel did not hurt himself.'"
75

The district court acknowledged that under typical circumstances an

individual does not have an affirmative duty to act or intervene on another's

behalf unless such a duty arises from a special relationship between the parties.
76

The court relied on section 3 14A of the Restatement (Second) of Torts which lists
several recognized special relationships, "including the relationship between a

common carrier and its passengers, an innkeeper and his guests, a possessor of
land and his invitees, and one who takes custody of another thereby depriving
him of other assistance."

77
The court emphasized that the list was not exhaustive

and that additional special relationships may exist.78 The court analyzed Virginia
law regarding special relationships in other contexts and determined that there

must be "foreseeability of the harm" to establish a special relationship.
79

Under

the facts of the case, the court found that Frentzel' s self-inflicted harm was
foreseeable based on his communications and actions which Newcombe, Holley,
and the college were aware of.

80

The court determined that it was unlikely that Virginia would find that a
"special relationship exists as a matter of law between colleges and universities

and their students, it might find that a special relationship exists on the particular

facts alleged in this case."
81

The court allowed the suit to proceed against
Newcombe and Ferrum because they "could have breached their duty to render
assistance to Frentzel," but said that Holley could not have taken any additional

steps to prevent Frentzel' s suicide.
82

72. Id. at 611.

73. Id. at 605.

74. Id.

75. Id.

76. See id. at 606.

77. Id.

78. Id. at 607.

79. Id. at 609.

80. Id.

81. Id. (emphasis added).

82. Mat 610.



432 INDIANA LAW REVIEW [Vol. 40:423

Although the case was eventually settled out of court,
83

the Schieszler

decision was the first signal to universities that the liability related to suicide may
be changing. It was noted that this was an area of law potentially in flux and that
if the Schieszler decision was followed in subsequent cases that suicide liability

could be changing drastically.
84

In fact, three years later in Shin v. Massachusetts

Institute of Technology, the most recent case to address the issue, the trial court

drew strong comparisons to the facts of Schieszler and ultimately relied on its

holding to reach a similar conclusion.
85

Elizabeth Shin began exhibiting suicidal tendencies during her freshman year

at Massachusetts Institute of Technology ("MIT").
86

In her second semester,

Elizabeth was admitted to the hospital for an overdose on Tylenol with codeine.
At that point, she consented to parental notification, and following her discharge,

was taken by her father to meet with MIT's Mental Health Services Department.
87

Elizabeth's Residence Hall Director, Davis-Mills, and the Dean of Counseling
and Support Services ("CSS"), Henderson, were made aware of her fragile
condition and she saw numerous psychiatrists who were a part of the MIT mental
health team throughout the rest of the year.

88
She returned home for her summer

break.

In her sophomore year, her mental health condition declined as numerous

suicide threats were reported by faculty and students to Davis-Mills and

Elizabeth's team of psychiatrists.
89

Just prior to spring break, she was ordered to

remain in MIT's infirmary overnight for observation, and with permission her
parents were contacted. Her father picked her up and brought her home to New
Jersey.

90 When she returned from spring break, she began seeing a new
psychiatrist, who did not review Elizabeth's record or history prior to meeting
with her. Shortly thereafter, Davis-Mills was told on numerous occasions by

students and faculty that Elizabeth's mental health was "deteriorating."
91

Elizabeth continued to regularly meet with a variety of mental health care

professionals at the school, and it was suggested by one that it might be best for

Elizabeth to be admitted to the hospital, but no specific plans were made.
92

83. See Bombardieri, supra note 5 (noting "that case was ultimately settled out of court").

84. See Lake & Tribbensee, supra note 3, at 1 36. In response to the Schieszler decision, Lake
and Tribbensee asserted that: "This case will be closely watched and could, if it stands, rewrite

college-suicide law." Id.

85. Shin v. Mass. Inst, of Tech., No. 02-0403, 2005 Mass. Super. LEXIS 333, at *35 (June

27, 2005). "More recently, in Schieszler v. Ferrum College, a similar case to the instant case . .
."

Id.; Hoover, supra note 5 (noting that "[t]he judge based her conclusion [in Shin] on Shieszler v.

Ferrum College").

86. Shin, 2005 Mass. Super. LEXIS 333, at *2.

87. Id. at *2.

88. Id. at*3-5.

89. Id. at*6-8.

90. Id. at*7.

91. Id. at*8.

92. Id. at *10.



2007] UNIVERSITY LIABILITY 433

Subsequently, two days before her death, Elizabeth made suicidal comments to
students who in turn reported them to campus police. The on-call psychiatrist
spoke with her briefly over the phone, but allowed her to remain in the dorm and
did not pursue any additional means for monitoring her condition.

93

Elizabeth's parents briefly visited their daughter on April 9 at school.
94
They

commented that,
u
[h]er eyes did look tired and puffy" but they thought that was

typical of a student under stress at MIT.
95

Elizabeth made no mention to them of
her deteriorating condition, and they claim they did not know that a psychiatrist
had considered hospitalization.

96 On April 10, a joint meeting of the deans and
psychiatrists was held at which time the severity of Elizabeth's condition was

discussed.
97

Although a specific plan was not identified, following the meeting

a psychiatrist called Elizabeth and left a message that she had an appointment at

an outside facility the next day. However, that evening Elizabeth was found in

her room "engulfed in flames" and was subsequently pronounced dead from
"self-inflicted thermal burns."

98

Elizabeth's parents filed suit against MIT, MIT Medical Professionals, MIT
Administrators and MIT Campus Police.99 In total, the Shins complaint alleged
twenty-five counts on various grounds. In June 2005, the court addressed

numerous motions to dismiss. This Note will focus on two of the plaintiff's

claims specific to the university administrators and their corresponding motions

to dismiss.

MIT administrators Henderson and Davis-Mills moved for summary
judgment regarding the counts brought against them, arguing that they did not

have a duty to prevent Elizabeth from committing suicide.
100 To support their

argument they relied on the following Massachusetts law: "[P]ersons who are not
treating clinicians have a duty to prevent suicide only if (1) they caused the

decedent's uncontrollable suicidal condition, or (2) they had the decedent in their

physical custody, such as a mental hospital or prison, and had knowledge of the

decedent's risk of suicide."
101

Henderson and Davis-Mills asserted that as non-

treating clinicians neither of the above conditions had been met and therefore they

did not have a duty.
102

However, as in Schieszler, the court relied upon Section

314(a) of the Restatement (Second) of Torts, which dictates that a special

relationship between the parties may also give rise to a duty where one does not

93. Mat*ll-12.

94. Sontag, supra note 10.

95. Id.

96. Id.

97. Shin, 2005 Mass. Super. LEXIS 333, at *13.

98. Id. at *15 (quoting medical examiner's report). Despite the medical examiner's report,

following the settlement between the parties, both the parents and the university now believe that

Elizabeth's death was accidental and not suicide. Bombardieri, supra note 8.

99. Shin, 2005 Mass. Super. LEXIS 333, at *1.

100. Id. at*31.

101. Id. at *32 (citing Nelson v. Mass. Port Auth., 771 N.E.2d 209 (Mass. App. Ct. 2002)).

102. Id.



434 INDIANA LAW REVIEW [Vol. 40:423

already exist.
103 The court looked to a variety of university cases and determined

that in other types of cases courts had found a special relationship between

administrators and students. Specifically, the court cited Mullins v. Pine Manor
College, where the court found that a college and an administrator had a special

relationship with students and therefore a duty to protect students against criminal

acts.
104

The court also relied upon Schieszler v. Ferrum College for the premise
that the university did have a special relationship with a student and therefore a

duty to protect the student.
105

Ultimately, in Shin, the court determined that Henderson and Davis-Mills had

notice of Elizabeth's condition and could have reasonably foreseen that Elizabeth

would harm herself.
106

Consequently, the court determined that "there was a
'special relationship' between the MIT Administrators, Henderson and Davis-
Mills, and Elizabeth imposing a duty on Henderson and Davis-Mills to exercise

reasonable care to protect Elizabeth from harm."
107

Subsequently, the

administrator's motion to dismiss for gross negligence was denied. The plaintiffs
had asserted gross negligence on behalf of the treatment team because they failed

to enact a treatment strategy to combat Elizabeth's numerous suicide threats. The
court found that Henderson and Davis-Mills were a part of Elizabeth's treatment

team and the plaintiffs had "sufficient evidence of a genuine issue of material fact

as to whether the MIT Administrators were grossly negligent in their treatment
of Elizabeth."

108
Additionally, the court allowed the plaintiffs' claims to proceed

regarding negligence and wrongful death because the plaintiffs had "sufficient

evidence to raise a genuine issue of material fact as to whether MIT
administrators breached their duty and proximately caused Elizabeth's death."

109

In the wake of the Shin decision, the media noted that, "legal uncertainty
[following Shin] is causing a furor among college officials."

110
Gary Pavela, the

Director of Student Judicial Programs at the University of Maryland at College

Park, commented that the Shin and Schieszler decisions together have "national
implications" for universities.

111
Pavela even cautioned that in response to these

decisions it may be best for universities to "err on the side of overreaction" in

103. Restatement (Second) of Torts §314A (2005).

104. Mullins v. Pine Manor Coll., 449 N.E.2d 331 (Mass. 1983).

105. Schieszler v. Ferrum Coll., 236 F. Supp. 2d 602, 606 (W.D. Va. 2002).

106. Shin, 2005 Mass. Super. LEXIS 333, at *36-37.

107. Id. at*38.

108. Id. While not addressed in this Note, the court also denied the motion of the medical

professionals on a similar claim of gross negligence. The plaintiffs asserted that the medical

professionals had failed to develop a coordinated treatment plan to ensure Elizabeth's well-being,

and the court found that the plaintiffs had sufficient evidence to proceed in that claim. Id. at *25.

109. Id. at*39.

110. Bombardieri, supra note 5.

111. Barbara Lauren, MIT Student Suicide Case Cleared to Go to Trial; FERPA Health and

Safety Exception May Be Involved (AACRAO Transcript), Aug. 3, 2005, www.aacrao.org/
transcript/index.cfm?fuseaction=show_print&doc_id=2791. Pavela has also commented that the

Shin decision is "very new ground" for universities. Bombardieri, supra note 5.



2007] UNIVERSITY LIABILITY 435

dealing with potentially suicidal students.
112

Sheldon Steinbach, vice president

and general counsel at the American Council on Education, also expressed fears

that Shin "increases the scope of liability, the expansion of the blame game, and

the potential for suits solely designed for settlement."
113

However, universities

hoping for clarification and a final determination on appeal were left to question

when the case was settled out of court. The questions surrounding the expansion
of the special relationship are still unsettled and yet to be determined in "almost

certainly, another lawsuit."
114

III. What Particular Facts Will Give Rise to a Special Relationship?

Despite their limited precedential value, Schieszler and Shin offer valuable

insight that can be used to assist universities in avoiding future liability or large

settlements in the future. In reaching their individual conclusions, both courts

emphasized that the suicide was foreseeable and therefore that the administrators
did have a special relationship with the student and consequently a duty to

prevent the suicide. In Schieszler, the court was careful to say that Virginia law
would probably not find that a special relationship exists in general between a
student and a university, but rather the "particularfacts" of the case warranted

a finding of a special relationship.
115

Although neither decision identified the

facts that gave rise to a special relationship, use of the phrase "particular facts"

implies that the special relationship will only be found in unusual cases where the
foreseeability of the impending suicide should have been apparent to university

administrators.
116

Below is an analysis of the factual similarities between
Schieszler and Shin that may serve as predictors of fact patterns that would create
liability in future cases.

A. Reports ofSuicide Threats Were Made to Administrators

In both Schieszler and Shin, administrators received several reports from third
parties of the decedent's intention to commit suicide. In Schieszler, administrator
Newcombe was made aware of at least three separate notes addressed to
Frentzel's former girlfriend indicating that Frentzel was contemplating suicide.

117

Upon discovery of one such note, the police had entered his dorm room to find
him with self-inflicted bruises on his head.

118

In Shin, on numerous occasions reports had been made to Davis-Mills and

112. Lauren, supra note 111.

113. Hoover, supra note 5.

114. Capriccioso, supra note 69.

115. Schieszler v. FerrumColl., 236 F. Supp. 2d 602, 609 (W.D. Va. 2002) (emphasis added).

116. Id. After the Shin decision, David DeLuca, counsel for the Shins, commented that the

decision will not affect university administrators to the degree that has been feared. He said,

"[t]here's no sense from this decision that a university administrator has an absolute duty to ensure

the safety of all students under all circumstances." Hoover, supra note 5.

1 17. Schieszler, 236 F. Supp. 2d at 605.

118. Id.



436 INDIANA LAW REVIEW [Vol. 40:423

Henderson regarding Elizabeth's condition. In Elizabeth's freshman year, Davis-

Mills was contacted when Elizabeth was hospitalized for a Tylenol overdose. 119

In Elizabeth's sophomore year, Henderson received an e-mail in which one of

Elizabeth's professors reported that Elizabeth had told a teaching assistant of

plans to take sleeping pills.
120

Davis-Mills was subsequently made aware of the
e-mail. Later that year, a student informed Davis-Mills that Elizabeth was

"cutting herself and extremely upset."
121

Just two days later, another student

reported to Davis-Mills that Elizabeth did not seem well, and in the coming
weeks numerous students and tutors made similar comments to Davis-Mills. 122

Davis-Mills expressed her concern regarding Elizabeth to Henderson. The day
that Elizabeth died, students had warned Davis-Mills that Elizabeth had plans to

commit suicide. Again, Davis-Mills had reported the incident to Henderson.
123

B. Administrators Had Conversations with the Student Regarding
Suicidal Thoughts

In addition to reports from third parties, in both cases administrators were in

direct contact with the student. In Schieszler, in response to the first suicidal note

Newcombe spoke directly to Frentzel and asked him to sign a document which
promised that he would not harm himself.

124
In Shin, Davis-Mills and Henderson

both had numerous conversations with Elizabeth regarding her condition. On
several occasions, following reports from students, Davis-Mills had made contact
with Elizabeth. Henderson had also regularly been in contact with Elizabeth.

Elizabeth had informed Henderson of her cutting habit, and just weeks before she

died, Elizabeth had contacted Henderson to request help in obtaining extensions

on class assignments because of her mental condition.
125

C Administrators Required the Student to Receive Counseling

Finally, in both situations concern regarding the student's behavior had

warranted administrators to refer the student on to a counselor, psychiatrist or

mental health specialist. In Schieszler, following "disciplinary issues," Frentzel

was required to enroll in anger management counseling prior to returning for his
second semester.

126
In Shin, administrators repeatedly requested and required

Elizabeth to visit mental health professionals. Following her overdose freshman

year, Elizabeth was seen by a psychiatrist from MIT's Mental Health Services
Department. In her sophomore year, Henderson had scheduled an immediate

1 19. Shin v. Mass. Inst, of Tech., No. 02-040, 2005 Mass. Super. LEXIS 333, at *2 (June 27,

2005).

120. Id. at*6.

121. Id.

122. A*.at*8.

123. Id. at *12.

124. Schieszler v. Ferrum Coll., 236 F. Supp. 2d 602, 605 (W.D. Va. 2002).

125. Shin, 2005 Mass. Super. LEXIS 333, at *7.

126. Schieszler, 236 F. Supp. 2d at 605.



2007] UNIVERSITY LIABILITY 437

session for Elizabeth upon discovery of her cutting habit.
127

Davis-Mills also

convinced Elizabeth to go to MIT Mental Health upon receiving student reports
that Elizabeth was harming herself.

128
Additionally, on numerous occasions,

Elizabeth visited MIT Mental Health at the prompting of others, at her own
discretion, and for regularly scheduled appointments with her treating

psychiatrists.

D. Conclusions

In both cases, it is apparent from third party reports, direct interactions with

the student, and the referral to the counseling center or mental health professional

that the administrators were at least aware of the student's fragile condition. The
repeated notifications from third parties regarding suicidal tendencies indicate

that it should have been foreseeable in the minds of administrators that the

student was considering suicide. Additionally, in both cases administrators were
aware that the student had been seen or was currently under the care of mental
health professionals. Although an administrator may assume that by referring the
student to a mental health professional that they have absolved themselves of

liability, these decisions indicate that is not the case. Even if the student is under
the care of a professional, if the student's suicide is foreseeable, the administrator

may still have a duty to prevent that student from committing suicide.
The good news for universities is that a court is unlikely to find a suicide is

foreseeable if the student does not give any warning or make public threats.
Because both courts (Sheiszler and Shin) stressed the foreseeability of the harm
as a significant factor in identifying a special relationship, it would be unlikely

that without any warning signals a court would find that a special relationship

exists between the parties. To this end, the attorney representing the Shins, David
DeLuca commented that it is the specific facts of the Shin case, and more
particularly the acts of the administrators, that he believes gave rise to their

liability.
129 DeLuca said, "a case in which a student kills himself without alerting

anyone about his immediate intentions would differ from a case in which a

student had told others of his plans."
130

University administrators should not

readily fear liability in situations where they are unable to foresee the student's

actions.

IV. How Should Universities Proceed?

With the knowledge that foreseeable harm may lead a court to identify a
special relationship and subsequent liability, how should universities respond in
an effort to shield themselves and their staff? "Since the Shin case was first filed,
MIT has made a number of enhancements to the mental health services it

127. Shin, 2005 Mass. Super. LEXIS 333, at *6.

128. Id.

129. Hoover, supra note 5.

130. Id.



438 INDIANA LAW REVIEW [Vol. 40:423

provides to students."
131

All institutions of higher education should take note of

the lessons learned in Shin and capitalize on the experience of MIT by enhancing
their own mental health departments. Perhaps most importantly, universities need
an established suicide prevention plan that serves as a resource to everyone on

campus regarding the proper protocol to follow when suicide threats are
reported.

132

A. Consistent Communication

Treating clinicians are clearly in the best position to assess and make
decisions regarding the well-being of students exhibiting signs of depression and

suicidal tendencies. In Shin, the court emphasized the lack of coordinated effort

among university personnel to address Elizabeth's short-term needs and to
develop an effective treatment program for her.

133 The lack of communication
among the handful of clinicians who saw her and the university administrators
was apparent even on the morning of her death at the weekly meeting of the deans

and psychiatrists when a definitive plan was not made to address Elizabeth's
deteriorating condition.

134
Unaware of the number of threats she had made

previously or the severity of her condition, any clinician treating Elizabeth would

have been unable to reach an educated decision regarding both short-term and

long-term care options.

To avoid this inconsistency and subsequent lack of effective treatment, on-
campus counseling centers should strive for constant communication among
clinicians. Although the size and nature of the counseling center will vary by

institution, communication regarding particularly volatile students among
clinicians within the center should happen at least once a week. As an additional
means of maintaining a coordinated effort, one clinician should be assigned to

each student who visits the center, and this person should have the primary
responsibility for monitoring the student's condition. Because it is unlikely that

a student will be able to be seen by the same clinician on every visit, especially

in emergency situations, there should be a primary treating clinician who receives

131. Capriccioso, supra note 69.

1 32. In 2004, the Suicide Prevention Resource Center prepared a report with funding from the

U.S. Department ofHealth and Human Services, "Promoting Mental Health and Preventing Suicide

in College and University Settings." This excellent resource, commonly referred to as the "White

Paper," offers statistics regarding suicide on campus, factors that may help identify volatile

students, and strategies for suicide prevention on campus. The document stresses the importance

of a "comprehensive approach to suicide prevention." SUICIDE PREVENTION RES. Ctr., supra note

25, at 17. Specifically it asserts that a "comprehensive approach will be more effective when it

includes consistent and coordinated activities in all the social spheres in which the target audience

(in this case, college students) live, study, work and play." Id.

133. The court said, "As a 'treatment team,' the professionals failed to secure Elizabeth's

short-term safety in response to Elizabeth's suicide plan in the morning hours of April 10." Shin

v. Mass. Inst, of Tech., No. 02-0403, 2005 Mass. Super. LEXIS 333, at *24 (June 27, 2005).

134. /d. at*13.



2007] UNIVERSITY LIABILITY 439

all updates and information related to that student. Furthermore, one record

should be maintained for each student and stored in a central file cabinet for the

center.
135

This will allow any clinician who treats a student in an emergency or
unexpected situation to contact the primary treating clinician with questions or

to take note of the previous treatment program and make an informed decision
regarding future treatment options.

There should also be regularly scheduled meetings between the deans and the

psychiatrists or other representatives of the counseling center.
136

At these

meetings, students of particular concern can be discussed as well as the available

treatment options. Administrators who may have more contact with faculty and
students will be able to report to the counseling center anything they have heard

regarding the student. Together the administration and the clinicians can discuss

treatment options, including decisions regarding the need for reduced class loads,

a change in residential housing, or more involved supervision. For students such

as Elizabeth who have made numerous visits to the counseling center as well as
several suicide threats to peers and professors, it is imperative that the counseling

center and administrators together reach a definitive strategy to assist the student.

B. Training

Universities need to invest in the development of suicide prevention training

programs for residence life staff, administrators, faculty and others who are in
close contact with students.

137
Training programs strive to alleviate ineffective

responses to foreseeable harm. Such programs should focus on symptoms of

suicidal students, when action is necessary, and the proper course of action when
a suicidal student is identified or a threat is made.

138 As evidenced in the Shin
case, residential life staff can be susceptible to liability because of their constant

interaction with students in the dormitories.
139

Prior to the beginning of the

school year, all residence life staff should undergo at least one segment of

training dedicated to suicide awareness and prevention. Because they are in the

1 35. See Ann Franke et al., Dealing with Distressed and Suicidal Students: Legal

Policy Issues, National Association of College and University Attorneys, Virtual

Seminar, 32 (Oct. 14, 2005) (noting that universities should "[e]ncourage counselors to maintain

client files with bad outcomes in mind").

136. Id. at 15 (noting that the Shin decision (where there were meetings of the deans and

psychiatrists) does not "justify abandonment" of these types of meetings).

137. See Bloch, supra note 41, at 944-45 (discussing the importance of training people to

recognize "screams" for help); see also Lake & Tribbensee, supra note 3, at 154-55.
138. Several organizations offer live training programs, as well as electronic training

programs. Suicide TALK is one of the examples of electronic training programs available. See
Living Works Education, Inc., Suicide Talk: An Exploration in Suicide Awareness,

http://www.livingworks.net/ST.php (last visited Jan. 8, 2007).

139. Davis-Mills was the housemaster of Elizabeth's dormitory. Shin, 2005 Mass. Super.

LEXIS 333, at *3. She often received reports from students regarding suicidal comments that

Elizabeth had made. Id.



440 INDIANA LAW REVIEW [Vol. 40:423

best position to observe the daily habits of students, they should be aware of signs

of suicidal students as well as the appropriate response when students express
concern regarding another student.

Faculty should also be trained in suicide prevention.
140

In both Jain and Shin,

the suicide appeared to be prompted in part because of the pressures inherent in

college life, including academic hardship.
141

In Shin, Elizabeth felt she was

struggling in her coursework and had requested extensions on her assignments.
She also told at least one teaching assistant that she had intended to kill herself.

142

Because faculty are often aware of a student who is falling behind or performing
poorly, they have an opportunity to interact with such students who may be
suffering from depression and consequently contemplating suicide. An effective
option for training faculty is the electronic suicide prevention programs.

143
These

programs are often completed at the convenience of the professor within a

designated period of time and offer the suicidal signs professors should be

looking for and the appropriate means to address them. In addition,

accompanying any university-sponsored training program should be a concise

document tailored to the individual institution that details the appropriate

response to a suicide threat.

C. A Variety of On-Campus Resources

The coordinated plan should involve several resources for students to turn to
when they or their friends experience symptoms of depression or suicidal
tendencies. The majority of colleges and universities do house an on-campus
counseling or mental health facility, and often the services are free to students as

the costs are incorporated into tuition and other fees.
144

Despite the presence of

such centers, students may be unaware of the scope of the work of the counseling
center or fear a stigma attached with making a visit. Students may think their
issue or concern does not warrant an appointment. Therefore, universities and

counseling centers should seek to enhance the visibility of counseling centers on

campus and encourage students to take advantage of the programs and services

140. See Lake & Tribbensee, supra note 3, at 154-55 (emphasizing the importance of training
the "academic staff' at a university).

141. In Jain, Sanjay was reported to be suffering both personally and academically. Jain v.

Iowa, 617 N.W.2d 293, 295 (Iowa 2000). In Shin, Elizabeth had requested numerous extensions

on work and examinations, and she told one clinician that she was "considering transferring from

MIT due to her marginal performance in some of her classes." Shin, 2005 Mass. Super. LEXIS

333, at *4.

142. Shin, 2005 Mass. Super. LEXIS 333, at *6.

143. See, e.g., supra note 138.

144. See Suicide PREVENTION Res. Ctr., supra note 25, at 2 1 (discussing the fact that many

such counseling centers are not currently staffed or open twenty four hours per day and

recommending that counseling centers develop procedures for incidents that occur on the weekends

or other off hours).



2007] UNIVERSITY LIABILITY 441

offered.
145

Acknowledgment of the counseling center should begin at freshman
orientation.

146 As evidenced in all three of the above cases, often depression and
suicidal tendencies strike early in a student's college career, as they adjust to

living on their own and the pressures of college life. 147 As one of the required
seminars at freshman orientation, students should hear briefly about the work of
the counseling center and be encouraged to visit for any variety of issues.

In addition to counseling centers, universities should have web-sites (often

these are coordinated through the counseling center) that provide information

regarding signs of depression and suicide and what to do when they themselves
or someone they are close to are experiencing such symptoms or emotions. As
the internet is now a prevalent source of information for college students, this
provides an anonymous means for students to research depression and suicide.

148

Residential campuses generally offer a variety of educational programs

throughout the year targeting hot-button issues on campus, either through
individual dormitories or other small groups. Such events should be planned to
specifically address depression and suicide awareness. A speaker from the
counseling center might speak to the issue followed by an open forum for

discussion of individual student experiences or questions relating to how to
approach or encourage friends they know suffering from similar symptoms.

D. Consistent Response to All Suicide Threats

University and college administrations need to develop a consistent plan
149

that is well-documented and perhaps even posted on the university's (or

counseling center's) web-site, to detail the standard procedure to follow when
suicide threats occur or when suicidal students are identified. 150 Often, as

145. See FRANKE ET al., supra note 135, at 32.

146. Craig Miller, M.D., assistant professor of psychiatry at Harvard Medical School and

Editor-in-Chiefofthe Harvard Mental Health Letter, has commented: "I think there is that pressure,

especially in the freshman year, when there's initial anxiety that's going to settle out They need

help with the transition and once they make it, it's quite successful." Ellen, supra note 27. Lisa

Cohen Barrios, Dr. P.H., has also commented "a freshman survey on a health center intake form

'would be a perfect place to ask these questions.'" Id.

147. In all three of the above cases, the students first exhibited suicidal tendencies in their

freshman year. In both Jain and Schieszler, the student actually committed suicide in his freshman

year. Schieszler v. Ferrum Coll., 236 F. Supp. 2d 602, 605 (W.D. Va. 2002); Jain v. Iowa, 617

N.W.2d 293, 295 (Iowa 2000).

148. See FRANKE ET AL., supra note 1 35, at 32 (suggesting the use of counseling center web-

sites). Numerous universities already have comprehensive web-sites that discuss depression and

suicide. The University of Michigan offers a good example of comprehensive web-site. See, e.g.,

http://www.umich.edu/~caps/.

149. See Lake & Tribbensee, supra note 3, at 153 (emphasizing the importance of consistently
following the established policy as a means to reduce liability).

1 50. See FRANKE ET AL., supra note 1 35, at 29-32 (suggesting that universities develop a plan



442 INDIANA LAW REVIEW [Vol. 40:423

evidenced in the Shin and Schieszler cases, students will make suicide threats to
their peers and faculty prior to committing suicide. At training sessions discussed

above, both students, faculty and residence life staff should be made aware of the
plan to be followed when a student makes a suicide threat. Any threat that is
either made or reported to anyone on campus should be relayed to a specific
designated administrator, most likely the dean of students or similar position.

151

This dean will bear the responsibility of contacting the student immediately to

ensure the short-term safety of the student and to make arrangements for an
appointment in the counseling center in addition to documenting the threat and

contacting the primary treating clinician for that student (assuming the student

has been to the counseling center before). After making a suicide threat, the

student should be seen by a clinician as soon as possible for an evaluation of the

severity of the threat and analysis of the appropriate response. The clinician
should then report back to the administrator to offer an assessment and

recommendation regarding treatment.

If, after meeting with the student, the clinician does not fear for the

immediate well-being of the student, the counselor may develop an appropriate
treatment response including regular appointments in the counseling center.

However, if the clinician is afraid for the student' s well-being, the student should

not be left unattended,
152

and the clinician should contact the dean regarding

decisions related to the student's studies, residence life, and immediate plans for

ensuring the student's safety.

If a student makes more than one reported suicide threat, the dean and
counseling center should schedule a meeting for the sole purpose of discussing

the well-being of the student and the need for immediate intervention. In both

Schieszler and Shin, the student made more than one reported threat, but the
administrators and counselors failed to develop appropriate means for preventing

the student's death.
153 When a student has made more than one suicide threat and

the student's condition does not show signs of improvement, the treating team
should consider contacting the parents and/or the possibility of sending the

student home for the duration of the semester. Involving the parents or guardians
at this stage makes them aware of their child's condition and allows the parent to

to address suicidal students and make it readily available). The Suicide Prevention Resource Center

offers several ideas to implement such a plan. See generally SUICIDE PREVENTION RES. Ctr., supra

note 25.

151. See Franke ET AL., supra note 1 35 (recommending universities to "designate a specified

person" to communicate with the student).

152. See Lake & Tribbensee, supra note 3, at 156 (asserting that often "suicides can be
prevented by an effective, appropriate and timely intervention"). Perhaps the suicide in Shin could

have been prevented. Although the physicians left Elizabeth a message that they planned to admit

her to a program the following day, they did nothing to ensure her immediate safety. Shin v. Mass.

Inst, of Tech., No. 02-0403, 2005 Mass. Super. LEXIS 333, at *13 (June 27, 2005).

153. In Schieszler, Frentzel wrote at least three notes expressing his intent. Schieszler v.

Ferrum Coll., 236 F. Supp.2d 602, 605 (W.D. Va. 2002). In Shin, Elizabeth made several threats

that were reported to administrators. Shin, 2005 Mass. Super. LEXIS 333, at *4-l 1.



2007] UNIVERSITY LIABILITY 443

be involved in the decision to keep the child in school or send him home until his
condition has improved. However, universities need to be mindful that

contacting the parents and sending students home may conflict with patient
confidentiality and other federal regulations discussed in Part IV.

154
Regardless,

when students have made repeated suicide threats, have been under constant care
with little or no improvement, and can not be trusted not to harm themselves, it
is likely in the best interest of both the university and the student to send them
home.

E, Identify Students Pre-disposed to Commit Suicide

Entrance surveys as a part of freshman or transfer orientation (after students

are admitted) or surveys for students who visit the health center have been
suggested as a means of identifying potentially volatile students and students who
might need to be monitored throughout their tenure.

155
This may prove to be a

fruitful means of identifying suicidal students and those suffering from

depression, but universities need to be cautious that they do not violate student

confidentiality.

F. Removing Foreseeable Hazards

As part of a comprehensive approach to alleviate foreseeable harm on
campus, universities should remove any hazards that have the potential to serve

as a "means of suicide."
156

This may include the elimination of "access to
handguns, drugs, and other common means of suicide." 157 Additionally
universities may consider "restricting access to high places on or near
campuses."

158

G. Stay Current

Until recently, universities were hard pressed to find resources and effective

strategies for suicide prevention.
159

Increasing concern for the well-being of

1 54. See, e.g. , Bombardieri, supra note 5 (noting that sending students home may conflict with

the Americans with Disabilities Act).

155. See SUICIDE PREVENTION Res. Ctr., supra note 25, at 1 8, 20 ("A screening instrument

might be administered at colleges and universities as part of the first year orientation and the

collection of health-related information about students."); see also Ross & Rogers, supra note 2
(noting that, "[Screening students for depression as they enter the University [can] also help to

minimize suicide on campus.").

156. Suicide Prevention Res. Ctr., supra note 25, at 23; see also Lake & Tribbensee, supra
note 3, at 154.

157. Suicide Prevention Res. Ctr., supra note 25, at 23.

158. Id.

159. See Lake & Tribbensee, supra note 3, at 153. Lake and Tribbensee note that in the past
the development of suicide prevention programs was impaired because there was not a consistent

model to follow. Id. However, as discussed above, recent federal funding in this area has produced



444 INDIANA LAW REVIEW [Vol. 40:423

college students has recently prompted discussion, research, and funding to

address the best means of preventing college suicide.
160

It is important for

universities to take advantage of the numerous opportunities and resources

available to them and to stay abreast of research developments. One opportunity
is a grant program established by the federal government through the United

States Department of Health and Human Services, Substance Abuse and Mental
Health Services Division.

161
This grant, the Campus Suicide Prevention Grant,

will award $3 million through individual grants of $75,000 to private and public

colleges and universities "to assist colleges and universities in their efforts to

prevent suicide and attempted suicide, and to enhance services for students with

mental health problems such as depression and substance abuse that put them at
risk for suicide or suicide attempts."

162
Grant recipients can use these funds to

assist in enhancing or creating training programs, suicide prevention hot-lines,

and literature for distribution.
163

There are also several programs and conferences that specifically address

suicide prevention. University student services staff and the residence life staff

should consider attending suicide prevention conferences where the latest

research will be presented and where they will have the opportunity to discuss

prevention strategies with other university employees.
164

Universities should use

these events to regularly re-evaluate their suicide prevention plans.

models such as those offered in the Suicide Prevention Resource Center's report. See supra note

132.

160. The Jed Foundation is a driving force in developing and researching campus suicide

prevention programs. The foundation was established in 2000 by Phil and Donna Satow in

response to the suicide of their son who was a college student. "The Jed Foundation was

established in order to prevent suicide on college campuses and focus on the underlying causes of

suicide." The Jed Foundation, Welcome to The Jed Foundation, http://www.jedfoundation.org (last

visited Jan. 8, 2007). The Foundation collaborates with university administrators, government

players, clinicians, and scientists to "design effective prevention programs that reflect the best in

current thinking." Id. Its web-site offers a variety of services and information designed to assist

universities and individual students in suicide prevention: http://www.jedfoundation.org.

161. See Substance Abuse and Mental Health Services Administration, Campus Suicide

Prevention Grants, http://www.samhsa.gov/grants/2005/nofa/sm05015_campus.aspx (last visited

Jan. 8, 2007).

162. Dep't of Health and Human Serv., Substance Abuse and Mental Health Services

Administration, Campus Suicide Prevention Grants, (Initial Announcement), RFA SM-05-015,
Catalogue of Federal Domestic Assistance (CFDA) No.: 93.243, page 5, available at

http://www.samhsa.gov/Grants/2005/nofa/sm05015_campus_suicide.doc (last visited Jan. 8, 2007).

163. Id.

164. The University of Virginia sponsored a conference on Suicide, Violence, and Disruptive

Behavior on University Campuses" on June 12-13, 2005. University ofVirginia Sponsors June 12-

13 Conference on Suicide and Related Issues on University Campuses, UNIV. OF Va. NEWS, June

9, 2003, http://www.virginia.edu/topnews/releases2003/suicide-june-9-2003.html. Over 300

clinicians and student affairs personnel registered. Id.



2007] UNIVERSITY LIABILITY 445

V. Legal Considerations

As universities implement and alter existing suicide prevention plans, they
are likely to encounter three specific legal issues discussed below. These issues

will force universities to navigate a fine line between protecting the well being

of students (and shielding themselves from liability) and respecting the rights and

interests of students as adult members of the educational institution.

A. Sending Students Home

Following the Shin decision, concerns have been voiced that universities

fearing liability will now require students to take a medical leave and return home
at the first sign of mental illness or depression.

165
Pavela has noted such a trend

on college campuses, and has cautioned against it: "If administrators overreact

to these cases by routinely removing students, then they are jumping out of the

frying pan and into the fire[.]"
166

Pavela is referencing the legal trouble

universities may encounter if they violate the requirements of the Americans with
Disabilities Act ("ADA"),

167
which mandates that schools intensely review an

individual's record prior to sending a student home.
168

Universities could open

the door to an entirely different set of problems and potential litigation if they do

not thoroughly review a student' s situation prior to dismissing a student.

The ADA mandates that qualified persons (including faculty, staff and
students) will not be discriminated against "on the basis of their disability."

169

The ADA defines persons with disabilities as "those with 'physical or mental
impairments which substantially limit one or more . . . major life activities, [those

with] a record of such an impairment, or [those who are] regarded as having such
an impairment.'"

170
There are only a limited number of cases which address

whether mental illness qualifies as a disability as it relates to higher education.
171

However, the majority of these cases suggest that where a psychiatric condition

is the cause of "misconduct or deficiencies" the university is not obligated to

make related accommodations. 172

Nonetheless, to insulate against controversial decisions, universities should

provide the student with due process including "notice of pending withdrawal"

165. See Hoover, supra note 5.

166. Bombardieri, supra note 5.

167. Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101-12213 (2000).

168. See Bombardieri, supra note 5.

169. Laura F. Rothstein, The American with Disabilities Act: A Ten-year Retrospective:

Higher Education and the Future ofDisability Policy, 52 ALA. L. REV. 241, 245 (2000).

170. Id. at 247 (quoting 29 U.S.C. § 705(20)(B) (2000); 42 U.S.C. § 12102(2) (2000))

(alterations in original).

171. Id. at 259.

172. Id. For example, a court held that "it was not reasonable to accommodate a masters

degree candidate with a panic disorder by waiving class attendance and allowing him to attend

classes by phone." Id. (citing Maczaczyj v. New York, 956 F. Supp. 403, 409 (W.D.N.Y. 1997)).



446 INDIANA LAW REVIEW [Vol. 40:423

and an "opportunity to be heard on the matter."
173

Additionally, prior to sending

students home, administrators should secure evidence that the student is a direct

threat, defined as "a significant risk of substantial harm to the health or safety of
the individual or others that cannot be eliminated or reduced by reasonable

accommodation."
174 A direct threat is comprised of four requirements: 1) a

"[h]igh probability of substantial harm"; 2) an "[individualized and objective

assessment of student's ability to safely participate in school's program"; and 3)
an "[assessment must be based on reasonable medical judgment relying on most

current medical knowledge or best available objective evidence."
175

Beyond ADA and other regulations, there is also an argument that public
policy reasons support retaining suicidal students at the university. As one
commentator has suggested: "[s]tudents are not well served by . . . automatic

medical leaves [that] return them stigmatized into families that may be chaotically
disorganized. . . a supportive campus setting enables them to continue their studies
while receiving treatment."

176

In each of the above cases, the university could have avoided the risk of

liability if the students been removed from school. Consequently, there will be

times when it is in the best interest of both the student and the university for the
student to take a leave from school (or alternatively be withdrawn in the event

that they do not leave voluntarily). However, such a decision should not be

approached lightly. The administrator should be sure that all of the necessary
elements of a direct threat have been adequately documented and that there is

sufficient evidence to support his/her decision in the event that either the parents

or the student contest the decision of the administrator. Furthermore, it should

be apparent that the student's best interest will be served by sending the student

home.

B. Student Confidentiality

In all three of the above cases the student exhibited suicidal tendencies while

on campus, and in all three cases the parents or guardians were not contacted

when the student's deteriorating condition became apparent. 177 In both Jain and
Shin, the parents asserted that the outcome may had been different had they been
contacted regarding their child's behavior and given the opportunity to

173. FRANKE ET al., supra note 135, at 25. "Emergency interim withdrawal is permitted

without process provided that process is provided after withdrawal." Id.

174. 29 C.F.R. § 1630.2(r) (2000).

175. FRANKE ET al., supra note 135, at 23.

176. Alan Lipschitz, College Student Suicide, http://www.afsp.org/research/articles/

lipsch2.html (last visited Jan. 8, 2007).

177. Elizabeth's parents were contacted on two occasions with Elizabeth's consent, but they

claim when they visited her the day before her death that they were unaware of her deteriorating

condition despite the numerous threats she had made recently to administrators. Sontag, supra note

10. In Jain, the court said, "Sanjay's parents and family were unaware of [his] difficulties." Jain

v. Iowa, 617 N.W.2d 293, 295 (Iowa 2000).



2007] UNIVERSITY LIABILITY 447

intervene.
178

However, universities are hesitant to violate student confidentially

and are often prohibited from releasing pertinent information by federal

regulation, local law, or campus policy.
Universities are bound to protect student confidentiality by the requirements

of what was formerly called the Buckley Amendment,
179 now entitled the Family

Education Rights and Privacy Act of 1974 ("FERPA").
180 FERPA is applicable

to all public and private educational institutions that receive federal funding.
181

Because the vast majority of higher education institutions receive federal funding,

nearly all higher education institutions are subject to its requirements.
182

Under
FERPA, these institutions must ensure "compliance with certain privacy-related
practices. Parents (and students [if] over the age of 18) must be given the right

to inspect and review the education records of their children (or themselves)."
183

Additionally, FERPA serves to protect one's right to privacy by restricting the
disclosure of information to third parties without consent.

184
Furthermore, a

record must be maintained that details all outside parties that have "requested or

obtained a student's education records."
185

Among the education records that parents are allowed to access are "records,
files, documents and other materials that contain information directly related to

a student and maintained by a covered institution or its agent."
186

Types of

records, however, are excluded from the educational record and subsequently

from automatic access to parents including "records maintained by the law

enforcement unit of an institution, employee records and certain medical related

records"
1 *7

Specifically, the statute excludes from the educational record all

records:

which are made or maintained by a physician, psychiatrist, psychologist,
or other recognized professional or paraprofessional acting in his

professional or paraprofessional capacity, or assisting in that capacity,

178. In Jain, "the only specification of negligence seriously advanced by plaintiff was his

claim that Sanjay's death resulted from the university's failure to notify his parents of his earlier

suicide attempt." Jain, 617 N.W.2dat 296. The Shins stated: "How we wish, more to the point,

that we had been told." Sontag, supra note 10.

179. Disclosure of Student Records: A Comprehensive Checklist, 3 CAL. SPECIAL EDUC.
Alert (May 1997); see also Matthew Bender & Company, Inc., 5-13 Educ. L. § 13.04, 3(a)
(2005) (detailing the history of FERPA).

180. 20 U.S.C. § 1232g (2000).

181

.

Gary Saidman, Overview ofKey Federal Privacy and Information Security Statutes, 4

E-Commerce L. Rep. 2, 6 (2002).

182. Matthew Bender & Company, Inc., supra note 179, § 3(b)(i).
183. Saidman, supra note 181, at 6.

184. See id.; see also Matthew Bender & Company, Inc., supra note 179, § 3(a).
1 85

.

Saidman, supra note 1 8 1 , at 6.

1 86. Id. ; see also MatthewBender&Company, Inc., supra note 179, § 4(b)(i) (noting that
"most records related to a student will be included").

187. Saidman, supra note 181, at 6 (emphasis added).



448 INDIANA LAW REVIEW [Vol. 40:423

and which are made, maintained, or used only in connection with the

provision of treatment to the student, and are not available to anyone

other than persons providing such treatment, except that such records can

be personally reviewed by a physician or other appropriate professional

of the student's choice.
188

The Act "does not consider treatment records education records for the purposes
of FERPA if they are not available to anyone other than persons providing
treatment."

189
However, if the treatment record is disclosed, for any purpose

(including a student's requested access to treatment records), then it will become
a part of the educational record and be subject to the Act's provisions.

190
Because

treatment records are not automatically included in the educational record, parents

are not guaranteed access to them. Additionally, under FERPA, non-recorded
information, including all verbal communications, is not an educational record

and therefore not readily available for parental access.
191

Therefore, individual state law will control university or clinician policies

regarding the release of student treatment information or verbal communication

to parents and third parties.
192

Local law differs by jurisdiction, but in many
jurisdictions conversations between a student and a physician, or mental health

professional are privileged and therefore cannot be revealed to parents or other

third parties requesting access without the express permission of the patient.
193

FERPA also includes an exception for drug and alcohol disclosures, which
may not be included in the educational record because they are criminal records.
The Act does not:

prohibit an institution of higher education from disclosing, to a parent or

legal guardian of a student, information regarding any violation of any

Federal, State, or local law, or of any rule or policy of the institution,

governing the use or possession of alcohol or a controlled substance,

regardless of whether that information is contained in the student's

education records,
194

assuming the student is not yet twenty one years of age and the institution has

determined that the student "committed a disciplinary violation with respect to

such use or possession."
195

Therefore, if a student has violated a law relating to

alcohol or a controlled substance, the school may contact the parents even if the
information is not contained in the education record. This provision may prove
important if it is established that a student with mental illness or suicidal

188. 20 U.S.C. § 1232g(a)(4)(B)(iv) (2000).

189. Matthew Bender & Company, Inc., supra note 179, § 4(b)(vi).
190. Id.

191. FRANKEETAL., supra note 135, at 18.

192. Id.

193. Id.

194. 20 U.S.C. § 1232g(i)(l) (2000).

195. Id. § 1232g(i)(l)(A)-(B).



2007] UNIVERSITY LIABILITY 449

tendencies has abused medications or other controlled substances.

FERPA contains an important provision regarding the release of information
that is contained in the educational record. Under FERPA, if the student's
conduct "posed a significant risk to the safety or well-being of that student, other

students, or members of the school community," the institution is permitted to
disclose the relevant information to "teachers and school officials, including

teachers and school officials in other schools, who have legitimate educational
interests in the behavior of the student."

196
If a student has exhibited troubling

behavior including a threat to themselves (or their classmates), the university

should inform faculty and staff of the behavior so they can assist the school in

monitoring the student.

In the future, universities are going to have to choose between violating the

confidentiality of students and responding to the potential harm, including legal

liability that could result by not informing parents or guardians of the student'

s

condition.
197

In developing protocols for contacting parents, universities should

"balance [the] risk of privilege violation against potential harm to students."
198

It is apparent that there will be circumstances where the risk of violating

confidentiality will be trumped by the student's well being.

C In Locus Parentis

Traditionally, courts "found the college stood in locoparenti—literally in the
place of the parent. . . [a]s the guardian of the students' health, welfare, safety

and morals."
199

But the Vietnam era and the campus revolutions of the 1960s

prompted a change in America' s perception of college students.
200

Students came
to be viewed as adults in their own right, rather than children under the care of
their parents.

201
"The passage of the 26th Amendment to the U.S. Constitution

lowering the voting age to 18 added to this feeling of student responsibility."
202

Identifying students as adults prompted changes in the courts' perception as

well, and therefore in recent decades, the university has not been regarded as

standing in locus parentis.™ This view was personified in Schieszler v. Ferrum,

196. Id. § 1232g(h)(l)-(2).

197. Lake and Tribbensee offer a valuable discussion of the case law regarding parental

notification and policy considerations. Lake & Tribbensee, supra note 3, at 137-53. Specifically,
they comment that "administrators in a university setting must consult with appropriate professional

staff to assess whether notification is in the best interest of the student and whether such

notification is expected to protect the student from suicide or suicidal ideation." Id. at 150.

198. FRANKE ET al„ supra note 135, at 18.

199. Robert A. Clifford, Clearing the Haze Around College Hazing, Cffl. LAW., Sept. 8, 1996,

at 8.

200. Id.

201. Id.

202. Id.

203. See Jennifer L. Spaziano, It's All Fun and Games Until Someone Loses an Eye: An

Analysis of University Liability for Actions ofStudent Organizations, 22 PEPP. L. REV. 213, 226



450 INDIANA LAW REVIEW [Vol. 40:423

where the court specifically said, "[t]he instant case does not involve a minor, and

therefore, strictly speaking, no duty arises from an in loco parentis

relationship."
204

However, it has been noted that recent cases have caused

"commentators to consider the re-emergence of the in loco parentis doctrine."
205

It has also been argued that "[m]ore and more students are looking to higher
educational institutions for help with other parental [] aspects of their lives-

tuition assistance, job hunting and establishing their careers."
206 As students

become more dependent on their institution to serve as pseudo-parents in many
respects, "should the institutions that house and educate these teenagers and

young adults ultimately be responsible for the student's negligent actions?"
207

If

universities have a duty to reduce and regulate "dangerous activities peculiar to

the college environment^]" then that likely "means greater supervision of the

students, [and] perhaps we' ve just come full circle" in re-assuming the role of in-
locus parentis.

208

As the issue pertains to suicidal students, what is the proper role of the
university? The university needs to consider the implications of assuming a
parental role in the lives of students. The more constant supervision and care the
university provides suicidal students and students suffering from mental illness,

the closer they have become to assuming the role of in locus parentis and opening
a new door to liability.209 However, the alternative is not very appealing- to
remain detached from the students in the most need of care. Perhaps it is best for

universities to play an active role in lives of needy students but with a firm and

consistent suicide prevention policy to safeguard against liability.

Conclusion

Although the issue of suicide liability remains both uncertain and concerning

for universities, universities should capitalize on the lessons that can be learned

(1994) (noting that the doctrine of in locus parentis was abandoned after Bradshaw v. Rawlings,

612 F.2d 135 (3d Cir. 1979), where the appellate court held that the college did not owe a duty of

custodial care to the student).

204. Schieszler v. Ferrum Coll., 236 F. Supp. 2d 602, 608 (W.D. Va. 2002).

205. Spaziano, supra note 203, at 227.

206. Clifford, supra note 199, at 8.

207. Id.

208. Id.

209. See generally Spaziano, supra note 203. Spaziano addresses the tension that universities

face between direct control and a hands off approach related to on-campus student organizations

and liability. She asserts that there are two ways that a university can avoid liability with student

organizations: 1) "by denying any relationship between itself and its student organizations, or

choosing to maintain control over its organizations but [limiting] liability through implementation

of carefully conceived regulations." Id. at 244. She concludes that it is in the best interest of the

university to assume a direct control approach. She determines that this is the "more definite

approach and the university, the organization, the student, and the courts know exactly where the

university stands in relation to the organization." Id. at 245.



2007] UNIVERSITY LIABILITY 451

from the Shin case. Universities have notice that in future cases a special

relationship may be found between a university or university administrators and
a student where the student's death is foreseeable. To avoid such liability,
universities need to be proactive in establishing a "multi-faceted and

comprehensive approach to suicide prevention" that will be consistently followed

by all members of the university community.
210

Institutions should make
communication, planning, and training pivotal parts of the suicide prevention

plan. In designing suicide prevention plans, universities must take into

consideration the legal issues related to sending students home, student

confidentiality, and the doctrine of in locus parentis. Finally, because the issue

of campus suicide is attracting attention from a variety of fields, universities
should stay abreast of the latest research, relevant cases, and other developments

to ensure that the their programs are the most effective means of suicide
prevention.

210. Health and Human Development Programs, supra note 1 (quoting Dr. Lloyd Potter,
Director of the Suicide Prevention Resource Center).