EISEL v. BOARD of EDUC. OF MONTGOMERY COUNTY
Author: Jessica Ilene

Facts:  Nicole Eisel, a 13-year old student at a middle school in Montgomery County, became involved in Satanism, which caused her to have an obsessive interest in death and self-destruction.  Nicole told several friends and fellow students that she intended to kill herself.  Some of the students reported Nicole’s intentions to their school counselor, who relayed the information to Nicole’s counselor.  The two counselors then questioned Nicole about the statements but she denied making them.  Neither counselor notified Nicole’s parents of the school administration about Nicole’s alleged statements of intent.  About one week later a student, who attended another school, after entering into a murder-suicide pact with Nicole, shot and killed Nicole and then shot herself. 

Statement of Case:  Nicole’s father, Eisel, alleged negligence on the part of the two school counselors, among others.  Eisel argued that, by the School Board’s own policy, counselors were required to contact the parents of any child who had expressed suicidal thoughts.  In failing to do so, p maintains that a duty of care was breached by Ds.

Procedural History:  p’s complaint joined as Ds the Board of Education of Montgomery County, Montgomery County Public Schools and the Superintendent of Schools of Montgomery County, the principle of the middle school and Nicole’s counselor.  Ds filed an answer and documents were produced.  Ds filed a motion to dismiss the amended complaint and/or motion for summary judgment.  Among other grounds, the motion asserted that Ds owed no duty to p or to Nicole.  The Circuit Court granted Ds’ motion to dismiss complaint with prejudice and ruled that allegations of negligence against the superintendent and school principal were insufficient.  The court ruled that Montgomery County Public Schools was not an entity separate from the Board of Education.  Counsel for Ds accepted the allegations of the amended complaint as true, for purposes of the motion.  On that basis, Ds’ counsel argued, as a matter of law, the absence of any duty and the lack o f proximate cause.  The Circuit Court ruled that proximate cause was a question for the jury, but that public policy considerations precluded legally recognizing any duty on the remaining Ds to intervene for the purpose of attempting to prevent suicide.  The Circuit Court granted summary judgment for Ds premised on the absence of any duty.  p appealed the grant of summary judgment and a writ of certiorari was granted.

Issue:  Whether the duty contended for may be breached by junior high school counselors who fail to inform a parent of suicidal statements attributed to the parent’s child by fellow students where, when the counselors sought to discuss the subject, the adolescent denied making the statements.

Rule:  There are 2 broad categories of cases in which a person may be held liable for the suicide of another: (1) when the D’s conduct actually causes the suicide; and (2) when there is a special relationship between a D and the suicidal person.

Holding:  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.  A trier of fact could conclude that the duty included warning p of the danger.  Summary judgment was erroneously entered.

Rationale:  The relation of a school towards a pupil is analogous to one who stands in loco parentis, with the result that a school is under a special duty to exercise reasonable care to protect a pupil from harm.  Among the variables to be considered in determining whether a tort duty should be recognized are: (1) the foreseeability of harm to the p; (2) the degree of certainty that the p suffered the injury; (3) the closeness of the connection between the D’s conduct; (4) the policy of preventing future harm; (5) the extent of the burden to the D and consequences to the community of imposing a duty to exercise care with resulting liability for breach; and (5) the availability, cost and prevalence of insurance for the risk involved.  Here Nicole’s suicide was foreseeable because the Ds had direct evidence of Nicole’s intent to commit suicide.  The degree of certainty that p and Nicole suffered from the harm foreseen is 100%.  Nor would reasonable persons necessarily conclude that the harm ceased to be foreseeable because Nicole denied any intent to commit suicide when the counselors undertook to draw out here feelings, particularly in light of the alleged declarations of intent to commit suicide made by Nicole to her classmates.  Nicole’s school had a suicide prevention program, under the Youth Suicide Prevention School Programs Act, prior to her death.  ? requested that the Superintendent produce all published rules relating to staff responses to alleged student intent to commit suicide.  In response, the superintendent produced a memorandum stating the steps that must be followed, including telling others as quickly as possible.  Holding counselors to a common duty of reasonable care to prevent suicides when they have evidence of a suicidal intent comports with the policy underlying the Act.  The youth suicide prevention programs provided for by the Act call for awareness of, and response to, emotional warning signs, thus evidencing a community sense that there should be intervention based on emotional indicia of suicide.  The harm that may result from a school counselor’s failure to intervene appropriately when a child threatens suicide is total and irreversible for the child and severe for the child’s family.  The consequence of the risk is so great that even a relatively remote possibility of a suicide may be enough to establish duty.  When the risk of death to a child is balanced against the burden sought to be imposed on the counselors, the scales tip overwhelmingly in favor of duty.  A telephone call would have been enough to discharge that duty.  Confidentiality does not bar the duty, given that the school policy explicitly disavows confidentiality when suicide is the concern.   

Disposition:  Judgment of the Circuit Court reversed.