“‘[A]n intervening act will not exculpate the original wrongdoer unless it is shown that the intervening act could not have been reasonably anticipated.’”
How later courts described this case
- “‘[A]n intervening act will not exculpate the original wrongdoer unless it is shown that the intervening act could not have been reasonably anticipated.’”
- holding that the plaintiff was entitled to a jury trial about whether a police department knew or should have known that a prisoner was a suicide risk and concluding that summary judgment is especially disfavored when knowledge is at issue
- holding that if the risk of suicide is a foreseeable result of a medical provider’s breach of duty, the suicide cannot be considered a superseding cause
- holding that the jury properly rejected the defense of intervening cause because it was foreseeable that defendants’ conduct created a risk that plaintiff would attempt suicide
Written by the judges who cited it.
The opinion
06/19/2019
IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
May 23, 2018 Session
BENJAMIN SHEA COTTEN, AS PERSONAL REPRESENTATIVE FOR
THE ESTATE OF CHRISTINA MARIE COTTEN, DECEASED, ET AL. v.
JERRY SCOTT WILSON
Appeal by Permission from the Court of Appeals
Circuit Court for Williamson County
No. 2015-194 Michael W. Binkley, Judge
___________________________________
No. M2016-02402-SC-R11-CV
___________________________________
SHARON G. LEE, dissenting.
The Estate of Christina Marie Cotten should have its day in court. Summary
judgment for Dr. Jerry Wilson is not appropriate because the issue of whether Christina
Marie Cotten’s suicide was a reasonably foreseeable result of Dr. Wilson’s negligent
conduct involves disputed questions of material fact. The majority, in lengthy footnotes,
attempts to defend its decision in favor of Dr. Wilson. The reasoning in this dissent is
clearly stated. I decline the invitation to debate in a series of footnotes. See Borne v.
Celadon Trucking Servs., Inc., 532 S.W.3d 274, 319 (Tenn. 2017) (Lee, J., concurring in
part and dissenting in part).
Summary judgment is appropriate only when there is no genuine issue as to any
material fact. Mann v. Alpha Tau Omega Fraternity, 380 S.W.3d 42, 46 (Tenn. 2012)
(quoting Tenn. R. Civ. P. 56.04). Our standard of review requires us to accept the
Estate’s evidence as true, to allow all reasonable inferences in its favor, and to resolve
any doubts about the existence of a genuine issue of material fact in favor of the Estate.
Martin v. Norfolk S. Ry., 271 S.W.3d 76, 84 (Tenn. 2008) (citing Staples v. CBL &
Assocs., Inc., 15 S.W.3d 83, 89 (Tenn. 2000); McCarley v. W. Quality Food Serv., 960
S.W.2d 585, 588 (Tenn. 1998)); B & B Enters. of Wilson Cnty., LLC v. City of Lebanon,
318 S.W.3d 839, 844–45 (Tenn. 2010). To prevail on his motion for summary judgment,
Dr. Wilson had to either affirmatively negate an essential element of the Estate’s claim or
show that the Estate’s evidence at the summary judgment stage was insufficient to
establish its negligence claim. Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477
S.W.3d 235, 264 (Tenn. 2015).
Foreseeability—A Disputed Question of Fact1
Dr. Wilson, a board-certified psychiatrist, met Ms. Cotten while they were
working together at Skyline Medical Center in Nashville. Dr. Wilson was the director of
the military unit, and Ms. Cotten was a psychiatric nurse in the unit. In May 2011, Dr.
Wilson and Ms. Cotten began having an affair. Dr. Wilson was single, but Ms. Cotten
was married and had a young child. After Ms. Cotten’s husband learned about the affair,
they separated. In June 2012, Ms. Cotten’s marriage ended in divorce, and she and her
former husband shared equal parenting time.
In 2012, Dr. Wilson left Skyline Medical Center to become an Assistant Professor
of Psychiatry at Vanderbilt University. Dr. Wilson’s work at Vanderbilt was mainly
clinical, and he did most of the inpatient coverage at the psychiatric hospital there. In
2013, Dr. Wilson left Vanderbilt for a better paying position at Rolling Hills Hospital. Dr.
Wilson kept seeing Ms. Cotten after he left Skyline Medical Center and Vanderbilt.
On March 19, 2013, Dr. Roy Asta, a co-worker of Ms. Cotten’s at Skyline
Medical Center, began treating her for depression and anxiety. Ms. Cotten had been
taking Prozac and Klonopin for some time and wanted a psychiatrist to continue her
treatment. At the March appointment, Dr. Asta noted Ms. Cotten lacked energy and
motivation and was having crying spells and anxiety. Ms. Cotten told Dr. Asta that she
was dating Dr. Wilson and was proud of it. Dr. Asta diagnosed Ms. Cotten with
depression and began treating her with Prozac, Klonopin, and supportive therapy.
On June 10, 2013, Ms. Cotten returned to see Dr. Asta. She was doing well with
her medications and had no complaints. Dr. Asta again diagnosed Ms. Cotten with
depression and continued the same treatment.
In October 2013, after Ms. Cotten was evicted from her home for nonpayment of
rent, she moved in with Dr. Wilson. While they lived together, Dr. Wilson and Ms.
Cotten discussed the possibility of marriage and children. Ms. Cotten was involved in
choosing cabinetry and other furnishings for the home that they would share in Franklin,
Tennessee. Dr. Wilson noticed that Ms. Cotten was having crying spells, was not as
energetic and motivated, and some days did not take care of herself. He described her
depression as extremely variable—she would do well for days at a time then be down for
a day or two.
1
We have taken the facts from the parties’ responses to the statements of undisputed material
facts and from the deposition excerpts filed by Dr. Wilson. The record lacks the deposition excerpts cited
by the Estate.
-2-
By late 2013, Dr. Wilson knew that Ms. Cotten suffered from mental health issues,
including depression. Dr. Wilson also knew that Dr. Asta was treating Ms. Cotten for
depression and that she was taking Prozac and Klonopin.
On January 23, 2014, Ms. Cotten’s former husband petitioned to gain “majority
custody” of their young child because he was concerned about Ms. Cotten moving with
Dr. Wilson to Franklin. Before January 2014 and the filing of the custody petition, Mr.
Cotten noticed that Ms. Cotten seemed unstable and not her normal happy self.
On January 26, 2014, Ms. Cotten tried to kill herself at Dr. Wilson’s home with an
overdose of alcohol and sleeping pills. Friends of Ms. Cotten took her to the Nashville
General Hospital emergency room. The doctor at the hospital diagnosed Ms. Cotten with
depression, anxiety disorder, acute alcohol intoxication, and medication overdose. The
doctor called a mobile crisis unit to conduct a mental health evaluation based, in part, on
the history given by friends of Ms. Cotten of her trying to hurt herself.
During the evaluation, Ms. Cotten told the mobile crisis counselor that stressors in
her life included her ex-husband’s court filing to modify custody and Ms. Cotten’s
feeling that her boyfriend, who was a psychiatrist, “[did] not care.” Ms. Cotten reported a
history of depression and anxiety. The crisis counselor found that Ms. Cotten had
symptoms suggestive of depressive disorder, was not receptive to treatment, and
appeared to be at imminent risk of self-harm. The counselor recommended a referral for
Ms. Cotten for inpatient psychiatric treatment, evaluation, and monitoring. The counselor
arranged for Ms. Cotten to be transported to the Middle Tennessee Mental Health
Institute for voluntary or involuntary admission. The basis for the admission was the
counselor’s assessment that Ms. Cotten was unable to avoid severe impairment or injury
and had a likelihood of potential self-harm.
After Ms. Cotten arrived at the Middle Tennessee Mental Health Institute, Dr.
Philip Brooks, a psychiatrist, evaluated her and discussed her condition with Dr. Wilson.
Dr. Brooks did not admit Ms. Cotten for inpatient treatment. Instead, Dr. Brooks decided
to discharge her, in part, because he knew she was going home with Dr. Wilson. Dr.
Brooks directed Ms. Cotten to follow up with her outpatient psychiatrist, who was Dr.
Asta, within seven days.2 Dr. Brooks talked with Dr. Wilson for ten or fifteen minutes,
2
Dr. Wilson gave differing accounts about Dr. Brooks’ instructions. Dr. Wilson did not dispute
the statements in the Estate’s Additional Statement of Undisputed Material Facts that Dr. Brooks said Ms.
Cotten needed follow-up psychiatric care, and that Dr. Wilson assured Dr. Brooks that Ms. Cotten would
follow up with her outpatient psychiatrist. Yet Dr. Wilson denied in his deposition that he was told that
Ms. Cotten should see her outpatient psychiatrist within seven days and that he received any
recommendations about her safety or outpatient care. Dr. Wilson also testified that he did not know
-3-
stressing the need for follow-up care and for Dr. Wilson to be a support system for Ms.
Cotten. Dr. Wilson assured Dr. Brooks that Ms. Cotten would follow up with her
outpatient psychiatrist within seven days. Dr. Wilson’s assurances factored significantly
into Dr. Brooks’ decision to discharge Ms. Cotten.
Despite Dr. Brooks’ instructions and Dr. Wilson’s assurances, Ms. Cotten did not
see Dr. Asta within seven days. Ms. Cotten did not return to see Dr. Asta until June 13,
2014. Neither Dr. Wilson nor Ms. Cotten told Dr. Asta about her suicide attempt. Ms.
Cotten first denied that she had attempted suicide, but later admitted to Dr. Wilson that
she had tried to kill herself.
In April 2014, Ms. Cotten’s former husband prevailed in his petition to modify
custody. As a result, Ms. Cotten went from having equal parenting time to visiting with
her son every other weekend.
In June 2014, Dr. Wilson noticed that “after she was stripped of custody of her
son,” Ms. Cotten was having frequent crying spells occurring once or twice a week,
wanted to sleep a lot, and was ruminating on the loss of time with her child.
On June 13, 2014, Dr. Asta saw Ms. Cotten after she called him in distress and
crying. He noted that she was doing poorly, was having crying spells, and was more
depressed than she had been before.
At some point before mid-August 2014, Dr. Wilson told Ms. Cotten she was not
making good decisions and “was putting their family constantly in jeopardy.”
In mid-August 2014, Dr. Wilson told Ms. Cotten that it was “time to move on”
and that he did not see a future for them. Ms. Cotten moved out of Dr. Wilson’s house,
but they continued to communicate by telephone, text messages, and email. Dr. Wilson
and Ms. Cotten did more than communicate; they continued to have sexual relations. Ms.
Cotten would sometimes stay with Dr. Wilson after she moved out, and they sometimes
talked about reconciling.
In late August 2014, after moving out of Dr. Wilson’s house, Ms. Cotten returned
to Dr. Asta for treatment for depression and anxiety. She told him that she had broken up
with her boyfriend and described their relationship as “being rocky.”
whether Ms. Cotten saw a psychiatrist within seven days after being discharged. The summary judgment
standard of review requires us to resolve these factual disputes in favor of the Estate.
-4-
On October 14, 2014, Ms. Cotten called Dr. Asta for medication refills and told
him that she was planning to move back in with Dr. Wilson.
On October 26, 2014, Dr. Wilson brought out a handgun at his home and showed
it to Ms. Cotten and her son while they were visiting. Dr. Wilson told Ms. Cotten that his
father had given him the gun and let her handle it before Dr. Wilson put it away in the
next room. Ms. Cotten knew that Dr. Wilson kept the gun in the dining room of his home.
The gun was in an unlocked drawer of the china cabinet, and the ammunition was in an
adjacent unlocked drawer.
The same day Dr. Wilson showed Ms. Cotten his gun, he told her that he was
seeing another woman. Ms. Cotten became angry, accused Dr. Wilson of using her for
sex, and stormed out of the house. Later, Dr. Wilson and Ms. Cotten continued to
communicate, with mixed feelings about reconciling.
After the October 26, 2014 gun incident at Dr. Wilson’s house, Ms. Cotten’s
former husband became concerned. On October 29, 2014, Mr. Cotten called the police
and requested a welfare check on Ms. Cotten after being told by his son that Dr. Wilson
had guns and was fighting with Ms. Cotten. Mr. Cotten also told Ms. Cotten that if she
continued living with Dr. Wilson, then Mr. Cotten would consider seeking to have her
visitation with their son supervised. Dr. Wilson stated in Fact No. 11 of his Statement of
Undisputed Material Facts that “the threat of losing more time with her son caused Ms.
Cotten to become further emotionally distraught.” When the following facts of Dr.
Wilson’s Statement of Undisputed Material Facts are read in order, it is clear that
October 2014 is when Ms. Cotten became “further emotionally distraught” and that Dr.
Wilson knew about her condition:
Fact No. 4 In June of 2012, Mr. and Mrs. Cotten finalized their divorce.
Fact No. 5 Their divorce mandated that they split parenting time . . . .
Fact No. 6 The equal split of parenting time continued until April 2014.
Fact No. 7 Mr. Cotten originally filed for majority custody in January of
2014.
Fact No. 8 After Mr. Cotten filed for majority custody, Ms. Cotten became
emotionally unstable and attempted to take her own life in January of
2014.
Fact No. 9 The [causal] link between Mr. Cotten filing for majority custody
and Ms. Cotten’s attempted suicide was discussed in the psychiatric
note in January 2014.
Fact No. 10 In October 2014, Mr. Cotten threatened to restrict further Ms.
Cotten’s access to her son . . . by limited [sic] her time with him to
supervised visits only.
-5-
Fact No. 11 The threat of losing more time with her son caused Ms. Cotten
to become further emotionally distraught.
Dr. Wilson cites Mr. Cotten’s deposition in which he acknowledged that the stressor Ms.
Cotten described at the time of her January 2014 suicide attempt was Mr. Cotten’s effort
to obtain primary custody of their child. Then, after the gun incident of October 26, 2014,
and within days of Ms. Cotten’s suicide, Mr. Cotten started talking to her about further
restricting her parenting time with their child by requiring her visitation time to be
supervised. This testimony about the threat of further restriction on Ms. Cotten’s
parenting time supports Dr. Wilson’s statement that the threat of losing more time with
her son caused Ms. Cotten to become further emotionally distraught in October 2014.
The Estate objected to Fact No. 11 as not being contained in the deposition
references cited by Dr. Wilson, but the Estate did not dispute the truth of this statement.
Even if there is some confusion about whether Dr. Wilson knew that Ms. Cotten became
more emotionally distraught in June or late October, our standard of review requires us to
resolve all reasonable inferences in the Estate’s favor—not Dr. Wilson’s. Thus, we must
resolve any confusion in favor of a finding that it was in late October—shortly before Ms.
Cotten committed suicide with the gun supplied by Dr. Wilson. The cited deposition
testimony of Mr. Cotten supports Dr. Wilson’s asserted fact that Ms. Cotten became
“further emotionally distraught” after Mr. Cotten discussed with her in October 2014 the
possibility of losing more time with her son. The inference to be drawn from Dr.
Wilson’s own stated chronology in Facts 4 through 11 is that he was aware of these
facts—asserted by him as undisputed—in October 2014.
About a week after showing Ms. Cotten his gun and telling her he was seeing
another woman, Dr. Wilson allowed Ms. Cotten, who told him she had been evicted from
her apartment and had nowhere to live, to stay at his house while he was out of town. Dr.
Wilson returned home from his trip on November 5, 2014. He left again from November
6 to November 9, 2014. While Ms. Cotten stayed at Dr. Wilson’s house, they
communicated by text messages, discussing whether to pursue their relationship or “let it
go.”
On the afternoon of November 9, 2014, Dr. Wilson came home to find Ms. Cotten
unresponsive in an upstairs bedroom. Dr. Wilson’s immediate thought was suicide—that
she must have overdosed. Dr. Wilson discovered a gunshot wound in Ms. Cotten’s chest
after he started resuscitation efforts. Dr. Wilson found his gun on the bed, next to Ms.
Cotten’s body.
Ms. Cotten’s friend, Kami Turner, notified Dr. Asta about Ms. Cotten’s suicide.
According to Dr. Asta, after Ms. Cotten’s January 2014 suicide attempt, a responsible
-6-
psychiatrist should have called to let Dr. Asta know that one of his patients had been
hospitalized. Dr. Asta said that had he been notified, he would have responded by
evaluating Ms. Cotten to determine what caused her to decompensate and then would
have changed her treatment and medications. Dr. Asta also would have worked on a plan
to make sure that Ms. Cotten took her medications correctly, became more compliant
with her treatment, and stopped drinking alcohol.
Dr. Asta testified, and Dr. Wilson does not dispute, that because Ms. Cotten
denied she was suicidal, it would have been more incumbent upon Dr. Wilson to inform
Dr. Asta of Ms. Cotten’s suicide attempt. Although Dr. Asta noted that Ms. Cotten had no
suicidal ideations when he last saw her on October 14, 2014, he did not know then about
her January 2014 suicide attempt. Dr. Asta also testified that, as a psychiatrist, he would
be concerned that a clinically depressed and anxious person was in a home with access to
a gun. Dr. Asta also noted, and Dr. Wilson does not dispute, that a person with symptoms
of depression or anxiety is at an increased risk of suicide, and the likelihood of a
successful suicide attempt is much higher with a gun than by pills or other means.
According to Dr. Asta, and also undisputed by Dr. Wilson, a gun should not be shown to
a person who is depressed, anxious, and has a history of suicide attempts.
Dr. Brooks, the psychiatrist who admitted Ms. Cotten to the Middle Tennessee
Mental Health Institute and released her in the care of Dr. Wilson, testified that when
dealing with mental health issues, one of the main questions is whether there are any guns
in the house. If there are guns present, a psychiatric patient cannot be released to that
home after a suicide attempt until the guns are removed. After Ms. Cotten’s suicide
attempt, had Dr. Brooks been told by Dr. Wilson that he had guns in his home, Dr.
Brooks would have emphasized to Dr. Wilson that the guns should be removed or safely
locked away. Although there were no guns in the house in January 2014, it is only
reasonable to infer that Dr. Wilson, as a board-certified psychiatrist, should have had the
same concerns in October and November 2014 about having a gun in the home when he
knew that Ms. Cotten was depressed, anxious, and had a history of attempted suicide in
his home.
In sum, Ms. Cotten paid a high price for her affair with Dr. Wilson. She lost her
marriage, her home, and equal parenting time with her son. In March 2013, she began
receiving psychiatric treatment for her ongoing depression, anxiety, and unhappiness. In
January 2014, she attempted suicide in Dr. Wilson’s home after learning that her former
husband was seeking primary custody of their son. After her suicide attempt, Ms. Cotten
did not receive timely follow-up psychiatric care. Ms. Cotten saw her psychiatrist in June
and August 2014 for depression. In October 2014, Ms. Cotten received refills of her
depression medications. By late October 2014, when she was planning to move back in
with Dr. Wilson, he told her he was seeing another woman, and Ms. Cotten’s former
-7-
husband told her he was considering limiting her parenting time to supervised visitation.
It all became too much for Ms. Cotten. On November 9, 2014, she killed herself with the
gun that Dr. Wilson had brought into his house, shown her, and failed to secure. All these
facts, taken in the light most favorable to the Estate, show that there are disputed
questions of fact about whether Ms. Cotten’s suicide was a foreseeable result of Dr.
Wilson’s negligent conduct.
In reviewing the trial court’s grant of summary judgment, we first cannot ignore
that Dr. Wilson is a board-certified psychiatrist. Dr. Wilson worked as a psychiatrist at
Skyline Medical Center, held the position of Assistant Professor of Psychiatry and
practiced psychiatry at Vanderbilt—a prestigious university—and practiced psychiatry at
Rolling Hills Hospital. Viewing the evidence in the light most favorable to the Estate, Dr.
Wilson knew about Ms. Cotten’s continuing depression, the link between depression and
suicide, and the need to keep a gun away from a person suffering from depression. Dr.
Wilson owed no professional duty to Ms. Cotten; he was not her treating psychiatrist.
That said, Dr. Wilson’s professional training and experience as a psychiatrist provided
him with knowledge and insight that necessarily affect the analysis about whether Ms.
Cotten’s suicide was reasonably foreseeable to him. Dr. Wilson does not dispute that a
person with Ms. Cotten’s mental health issues and previous suicide attempt should not
have been made aware of or have had access to a gun. At the very least, Dr. Wilson’s
admitted awareness of the risk posed to Ms. Cotten by giving her access to a gun raises a
question of fact about whether Ms. Cotten’s suicide was reasonably foreseeable to him.
Second, viewed in the light most favorable to the Estate, the evidence shows that
Dr. Wilson knew or should have known that Ms. Cotten suffered from depression in
October and November 2014. Ms. Cotten was treated for depression beginning in March
2013. Ms. Cotten attempted suicide in January 2014 and was taken to a mental health
facility. Dr. Wilson assured Dr. Brooks that Ms. Cotten would see her psychiatrist within
seven days after her release from the facility. But there was neither timely psychiatric
treatment nor notice to Dr. Asta of the suicide attempt. In April 2014, Ms. Cotten’s time
with her son was reduced from equal parenting to every other weekend. In June 2014, Dr.
Wilson described Ms. Cotten as frequently crying, wanting to sleep a lot, and ruminating
on the loss of time with her child. On June 13, 2014, Dr. Asta saw Ms. Cotten after she
called him in distress and crying. Dr. Asta noted that she was doing poorly, was having
crying spells, and was more depressed.
Ms. Cotten’s depression continued after June 2014. Dr. Asta saw Ms. Cotten on
August 29, 2014, for continued complaints of depression and anxiety. Ms. Cotten told Dr.
Asta that she had broken up with Dr. Wilson, describing their relationship as “rocky.”
The next time—and the last time—she spoke to Dr. Asta, was October 14, 2014, when
she called to obtain refills of her medications for depression, suggesting a continuing
-8-
need for the medications. At that time, Ms. Cotten told Dr. Asta that she was planning to
move back in with Dr. Wilson. On October 26, 2014, Dr. Wilson showed Ms. Cotten his
gun. He also told her he was seeing another woman, prompting an angry outburst from
Ms. Cotten. The October 26 incident caused Ms. Cotten’s former husband to request a
police welfare check on Ms. Cotten and to tell her that he was considering seeking to
have her parenting time supervised. According to Dr. Wilson’s Statement of Undisputed
Material Facts, Mr. Cotten’s suggestion of supervised visitation caused Ms. Cotten to
become “further emotionally distraught” in late October 2014, showing Dr. Wilson’s
knowledge of Ms. Cotten’s mental instability.
The stressors that Ms. Cotten cited after her January 2014 suicide attempt—her
former husband filing for a change in her parenting time and her psychiatrist boyfriend
not caring about her—were again present in November 2014 and were known to Dr.
Wilson.
Third, we cannot ignore the testimony of Dr. Asta and Dr. Brooks. Viewing the
evidence in the light most favorable to the Estate, the testimony of Dr. Asta and Dr.
Brooks is probative of the concerns that a psychiatrist, such as Dr. Wilson, should have
had about leaving a gun and ammunition unsecured and accessible to a person like Ms.
Cotten who, based on undisputed proof, was depressed and suffering from mental health
issues. According to Dr. Asta, after the January 2014 suicide attempt, a responsible
psychiatrist should have advised him that one of Dr. Asta’s patients had been in the
hospital. This must have been one reason that Dr. Brooks had Dr. Wilson assure him that
Ms. Cotten would see Dr. Asta for follow-up care within seven days. Dr. Asta would
have made changes to her treatment if he had known of the January 2014 suicide attempt.
Both Dr. Asta and Dr. Brooks were of the opinion—not disputed by Dr. Wilson—that a
person with Ms. Cotten’s mental health issues and previous suicide attempt should not
have been made aware of or have had access to a gun.
Finally, facts that are irrelevant should not be considered. This includes
information found on Ms. Cotten’s personal computer after her death suggesting that she
may have been involved in prostitution or X-rated filmmaking, or both. There is no
evidence that these activities contributed to her suicide. Our focus should be on what Dr.
Wilson knew or should have known in November 2014 that would make Ms. Cotten’s
suicide with his gun reasonably foreseeable. Information that Dr. Wilson learned from
Ms. Cotten’s computer after her death cannot be made relevant by suggesting that she did
not share with Dr. Wilson, her family, or friends every private detail of her life. What is
relevant is the ample evidence in the record—undisputed by Dr. Wilson—that he knew
he should not leave someone with Ms. Cotten’s mental health issues and history of
attempted suicide alone with access to a gun and ammunition. The information about Ms.
Cotten’s alleged “illicit activities” has no bearing on the issue of foreseeability, makes an
-9-
assumption unsupported by the evidence, fails to allow all reasonable inferences in favor
of the Estate as required, and serves to cast Ms. Cotten in a bad light to justify a result.
No doubt, Ms. Cotten suffered from depression and made some bad decisions in
the last few years of her life. But Dr. Wilson was along for the ride. He was fully aware
of Ms. Cotten’s instability, their “rocky” relationship, her suicide attempt, the lack of
timely follow-up care, the lack of notice to her psychiatrist of the suicide attempt, her
on-going depression, and the potential restriction of her parenting time that caused Ms.
Cotten to become “further emotionally distraught” shortly before her suicide. Yet Dr.
Wilson brought a gun into his home and showed it to Ms. Cotten, while on the same day
telling her he was seeing another woman. Dr. Wilson failed to secure the gun, even
though he knew that a person with symptoms of depression or anxiety is at an increased
risk of suicide, and that the likelihood of a successful suicide attempt is much higher with
a gun than by pills or other means.
We do not know how a jury would determine the Estate’s claim against Dr.
Wilson after considering all the evidence. But at this early stage of the case, and based on
limited evidence, there are disputed questions of material fact about the foreseeability of
Ms. Cotten’s suicide. This Court should not assume the role of fact-finder. Instead, this
Court should follow the standard of review by accepting the Estate’s evidence as true, by
allowing all reasonable inferences in the Estate’s favor (not in Dr. Wilson’s favor), and
by resolving any doubts about the existence of a genuine issue of material fact in favor of
the Estate.
Foreseeability and White v. Lawrence
This Court in White v. Lawrence, 975 S.W.2d 525, 530 (Tenn. 1998), held that the
crucial inquiry in a suicide case “is whether the defendant’s negligent conduct led to or
made it reasonably foreseeable that the deceased would commit suicide.” If the suicide
was reasonably foreseeable, then it was not an independent intervening cause that would
break the chain of legal causation. Id. In White, we overruled cases holding to the
contrary and cited cases consistent with our holding. Id.3 Denying summary judgment for
3
See Jacoves v. United Merch. Corp., 11 Cal. Rptr. 2d 468, 482–83 (Cal. Ct. App. 1992) (finding
neither a patient’s suicide nor the failure of the patient’s family and subsequent treating physicians to
prevent the suicide was a superseding cause when the suicide was a foreseeable risk of the defendant
hospital’s negligence in prematurely discharging the patient without adequate warnings to his caretakers);
Summit Bank v. Panos, 570 N.E.2d 960, 968–69 (Ind. Ct. App. 1991) (finding questions of fact remained
about whether misuse of prescriptions was foreseeable given the physician’s knowledge of the patient’s
emotional issues, whether the patient’s death was suicide or accidental overdose, and whether the suicide
would have occurred if the physician had given adequate warnings), abrogated in part by Vergara ex rel.
- 10 -
the defendant, the White Court relied on tort principles, rather than the suicide rule and
any exceptions to the rule. Id. at 530. Consistent with White, the Court of Appeals in
Ramsey v. Cocke County, No. E2016-02145-COA-R3-CV, 2017 WL 2713213 (Tenn. Ct.
App. June 23, 2017) (quoting Smith v. Pfizer, Inc., 688 F. Supp. 2d 735, 748 (M.D. Tenn.
2010)), properly held that the crucial inquiry was whether the decedent’s suicide was
foreseeable and “‘not whether a given case fits into a previously carved-out exception.”’
The suicide rule is “based on outdated science and a debatable appraisal of
society’s views concerning the morality of suicide” that “tends to short-circuit
commonsense inquiry into causation.” Alex B. Long, Abolishing the Suicide Rule, 113
Nw. U. L. Rev. 767, 824 (2019). Rather than getting lost in the maze of the suicide rule
and its exceptions, the White Court analyzed the issue based on tort law, holding that the
key question was foreseeability. As Professor Long aptly noted, “While the special and
often unpredictable nature of suicide needs to be taken into account in wrongful death
actions, tort law already has the tools in place to effectively deal with such cases. Courts
need only begin using them.” Id.
This Court made clear in White that the proximate cause analysis in a suicide case
should start and end with foreseeability. 975 S.W.2d at 530. There is no basis for a
heightened standard of proof, or more “solid evidence,” when the asserted superseding
cause is suicide. By viewing suicide in terms of foreseeability, White provided a
straightforward approach, doing away with the confusing and unnecessary series of
exceptions to the suicide rule. We should not retreat from White by reverting to a
discussion of exceptions to the suicide rule and analyzing the facts in those terms. Here,
the majority’s exception approach needlessly complicates the analysis that this Court in
White sensibly reduced to the issue of foreseeability, thus abrogating the categorical
approach of exceptions to the suicide rule, as the courts in Ramsey and Smith correctly
recognized. If the majority unwisely intends to revert back to the suicide rule and its
categories of exceptions, it should expressly overrule White.
Here, foreseeability rests largely on whether Dr. Wilson could have reasonably
foreseen Ms. Cotten’s suicide after showing her his gun and then leaving her alone in his
house with his gun unsecured. See Borne, 532 S.W.3d at 299 (quoting White v. Premier
Med. Grp., 254 S.W.3d 411, 417 (Tenn. Ct. App. 2007)) (setting forth the elements of the
Vergara v. Doan, 593 N.E.2d 185 (Ind. 1992); Cowan v. Doering, 545 A.2d 159, 166 (N.J. 1988)
(holding that the jury properly rejected the defense of intervening cause because it was foreseeable that
defendants’ conduct created a risk that plaintiff would attempt suicide); Champagne v. United States, 513
N.W.2d 75, 81 (N.D. 1994) (holding that if the risk of suicide is a foreseeable result of a medical
provider’s breach of duty, the suicide cannot be considered a superseding cause).
- 11 -
superseding cause defense, including the fourth element that “the superseding cause must
not have been reasonably foreseen by the original negligent party”); White, 975 S.W.2d at
529 (“‘[A]n intervening act will not exculpate the original wrongdoer unless it is shown
that the intervening act could not have been reasonably anticipated.’”) (quoting
McClenahan v. Cooley, 806 S.W.2d 767, 775 (Tenn. 1991)).
Dr. Wilson knew about Ms. Cotten’s on-going mental health issues and previous
suicide attempt. Dr. Wilson, as a board-certified psychiatrist, does not dispute that a
person with depression should never be shown a gun or made aware that a gun is on the
premises. That said, Dr. Wilson showed Ms. Cotten the gun at a particularly low point in
her life and left her alone in his house with the unsecured gun. He did this knowing her
history of depression, that he had told her he was seeing another woman, and that she was
“further emotionally distraught” over a custody issue—the same type of issue that had
caused her suicide attempt only nine months before.
In a similar case, Delaney v. Reynolds, 825 N.E.2d 554 (Mass. App. Ct. 2005), the
Appeals Court of Massachusetts reversed summary judgment for the defendant, finding
there were disputed material questions of fact. In Delaney, the parties were living
together, and the defendant knew his girlfriend-plaintiff was receiving treatment for
substance abuse and depression. Id. at 555. He left his gun, unsecured, in the home they
shared. Id. The defendant had noticed in the month before the plaintiff’s attempted
suicide that she was experiencing depression, feelings of isolation, and fatigue. Id. The
plaintiff claimed—and the defendant denied—that the defendant knew the plaintiff had
previously attempted suicide. Id. The plaintiff additionally claimed—and the defendant
denied—that she told the defendant she wanted to end her life and that his response was
to hand her a gun and tell her to shoot herself outside. Id. at 555–56. She did not shoot
herself that day, and she claimed that when she went back into the house, the defendant
told her the gun was not loaded. Id. at 556. The plaintiff also claimed that she later told
the defendant during a telephone conversation that she wanted to die. Id. One night,
following an argument with the defendant, the plaintiff shot herself. Id. She later claimed
she did not know the gun was loaded, and thus did not intend to kill herself. Id. The
Delaney court reversed the trial court’s award of summary judgment for the defendant,
noting that “whether the risk of injury was foreseeable is almost always one of fact.” Id.
at 558–59 (quoting Moose v. Mass. Inst. of Tech., 683 N.E.2d 706, 710 (Mass. App. Ct.
1997)); see also White v. Town of Seekonk, 499 N.E.2d 842, 843–44 (Mass. App. Ct.
1986) (holding that the plaintiff was entitled to a jury trial about whether a police
department knew or should have known that a prisoner was a suicide risk and concluding
that summary judgment is especially disfavored when knowledge is at issue).
Similar to the Delaney defendant, Dr. Wilson knew Ms. Cotten was depressed and
was receiving treatment for depression. Unlike the defendant in Delaney, it is undisputed
- 12 -
that Dr. Wilson was aware of Ms. Cotten’s history of attempted suicide. He was also
aware of the additional emotional distress caused by the threat of her parenting time
being further restricted. Also unlike the Delaney defendant, it is undisputed that, as a
psychiatrist, Dr. Wilson was aware of the risk that access to his gun posed to Ms. Cotten.
Ms. Cotten unfortunately, unlike the plaintiff in Delaney, did not live to testify about
what she told Dr. Wilson and what went on between them during her last days or to
dispute his self-serving testimony.
Conclusion
If the facts are viewed in the light most favorable to Dr. Wilson, he might prevail
on summary judgment. But this Court is required to accept the Estate’s evidence as true,
to allow all reasonable inferences in its favor, and to resolve any doubts about the
existence of a genuine issue of material fact in favor of the Estate—not in favor of Dr.
Wilson.
After applying the correct standard of review, I conclude that there are disputed
questions of material fact about the foreseeability of Ms. Cotten’s suicide. Reasonable
minds could draw more than one conclusion about the foreseeability of Ms. Cotten’s
suicide. Thus, the Estate should have the opportunity to develop and present its evidence
so that a jury who has seen and heard the witnesses, not an appellate court, can decide
whether the risk of Ms. Cotten’s suicide was reasonably foreseeable to Dr. Wilson.
For these reasons, I dissent and would allow this case to proceed.
_________________________________
SHARON G. LEE, JUSTICE
- 13 -