Georgia Supreme Court Fails to Recognize That Suicide May Be Foreseeable Following Cyberbullying Incident

 

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Many of you readers know I have often blogged, tweeted and spoken in public about suicide and what we as someone’s friends, family or colleagues can do to recognize a real suicidal threat and what we can do to get help to someone before he or she attempts to take his or her own life.  We know so much more about suicide today than we did just 20 years ago.  I would venture to say that what we thought about suicide and it’s causes 100 years ago would border on naivete, akin to treating leukemia with leeches.  For example, today we know that means restrictions, preventing access of the means or instruments to kill oneself, dramatically lowers the suicide rate, where 100 years ago we simply concluded if someone is suicidal it could not possibly be prevented. In a recent Harvard School of Public Health study, it was shown that if someone who is suicidal is simply prevented from having access to the means to commit suicide one time, 90% of those who had wanted to kill themselves but did not have access to the means or instrument (guns, drugs, rope) to kill themselves did not attempt suicide again.  Cyberbullying has become a leading cause of teen suicides. Social media has been at the root of numerous teenage suicides, especially where embarrassing photos or videos are posted online, which then go viral and are be seen by hundreds of classmates before the next day of school. This type of cyberbullying, using compromising or embarrassing images, has become so prevalent in our schools that many states are enacting legislation to criminalize it. This fact alone suggests suicide following cyberbullying is predictable.

Probably one of the most well-known and saddest cases of cyberbulling was the case of Tyler Clementi, an 18 year old freshman at Rutgers University, who jumped off the George Washington bridge into the Hudson River, killing himself. Tyler’s roommate had secretly filmed him having a private, sexual encounter with another male in Tyler’s dorm room. The roommate then live-streamed the intimate encounter on the internet. Would anyone doubt that Tyler would have been suicidal following a livestreaming of his most private, intimate moment in his own room? Studies have shown that cyberbullying, especially when it involves intimate photographs or videos, leads to an increased risk of depression and suicidal ideation.  Thus, it has become foreseeable and even highly likely that a young person may want to commit suicide after experiencing sexual or intimate cyberbullying.   Who could blame them?

Which brings me to City of Richmond Hill v. Maia, S16G1337, Supreme Court of Georgia, May 30, 2017.  You may remember I have written about this tragic case before, in my June 9, 2016 blogpost “Who Is Legally Responsible for a Suicide?”  I was writing about the decision by the Georgia Court of Appeals at that time.  To remind of you of the horrible facts in Maia, this is what I wrote then:

The facts are heartbreaking and very difficult to read or even imagine.  A young high school teenager attempted suicide by cutting her neck and stabbing herself.  Her mother placed her in a mental health hospital after the attempt.  The child stayed there for 9 days and then returned to her school.  As such things are with teenagers, the child’s suicide attempt became the talk of the school. According to her boyfriend’s testimony in the case “everybody knew after a couple of days what happened.” The City of Richmond Hill police department investigated the suicide attempt and as part of their official police investigation took photographs of the child’s injuries from the suicide attempt.  In what appears to be a horrific irony, one of the investigating police officers had a child who attended the same high school as the victim. The police officer became concerned  that his child did not appreciate the seriousness of the suicide attempt and so, in clear violation of the police department’s written policy entitled “Duty to Refrain from Disclosing any Information Relating to Police Activities,” showed the photographs of the victim to his daughter by accessing them through the police department’s computers. The police officer swore that he did not give them to his daughter or print them, but within days his daughter was showing these photographs of the victim on her cell phone to other students in the high school.

The mother of the suicide victim noticed her daughter seemed to grow more depressed.  She had the girl’s coach and mentor talk to her and the victim told her coach she “didn’t want to be here anymore,” and  she wished her suicide attempt had been successful. She told her coach how the police had belittled her and had shown the photographs of her and said “What more can they do to me?”

That evening she told her mother over the phone she loved her, posted on her Facebook wall that she loved her best friends, wrote notes in odd places in her room and then went up to the attic of her family’s house and hanged herself.

The mother sued the City of Richmond Hill for the negligence of the city’s police officer in violating official policy and sharing the photographs of the victim’s first suicide attempt, foreseeably leading to the victim’s subsequently successful suicide attempt.

The Georgia Court of Appeals held that the case against City of Richmond could proceed to a jury trial, holding that the child’s suicide was a “reasonably foreseeable consequence of  [the police officer’s] negligent conduct….”  The Georgia Supreme Court today, however, reversed the Court of Appeals and held that “the usual foreseeability principle does not apply to cases involving suicide because suicide is generally deemed an unforeseeable intervening cause as a matter of law….”  In reaching their conclusion, the Georgia Supreme Court relied on Georgia case law from 1913, over 100 years ago, on whether suicide is an intervening act that breaks the chain of causation.

It is no doubt true that in 1913  the vast majority of people, including physicians, thought suicide was not foreseeable, but as shown above, that is simply no longer the case, especially given the horrific facts of Maia and any other similar cyberbullying, such as Tyler Clementi.  Not only did the Supreme Court refuse to consider what is now widespread acceptance of the fact that suicide by a victim of cyberbullying is foreseeable, it also held went against well-known precedent that it is almost always for the jury to decide what is the cause of an event. This is known as proximate causation, and our Georgia courts, and most others, have always held the jury must decide if a negligent act caused damage.  But in Maia, the Supreme Court went against much of its own precedent to hold as a matter of law the plaintiff could never prove the officer’s negligent act in violating the police department’s policy of maintaining the privacy of those photographs, and his daughter’s then sharing the photographs with the entire school, caused the child to commit suicide.  One concurrence in the opinion hangs its hat on the fact that the police officer showed the confidential police investigation photos to his daughter in their home, a “private setting,” as if that somehow immunizes the egregious conduct.  But in this day and age of Iphone, Ipads, Snapchat, Instagram, Twitter, Facebook and a whole host of other social media platforms in which the very object is to share photos, it is extremely naive to think that the officer’s daughter would not save or duplicate those embarrassing images to show to everyone at school.  An embarrassing photo has now become the Holy Grail of popularity at school. The teenager can say “Look at me!  Look what I have!” without ever even leaving the so-called “private setting” of her home and within minutes, hundreds of other teenagers have seen and shared the compromising photos or videos. The footnote in that concurrence that suggests the case might have come out differently had the officer “released the photos, for example, at a school assembly where [the child] was in attendance,”  misses the point of social media and the viral nature of it.  It does not matter where compromising photos are shared for them to become very public within minutes.  They can be shared in one’s home, or one’s bedroom, or even one’s bathroom, but that does not prevent them from becoming the hottest item on social media before school starts the next day. Where photos are shared today is simply irrelevant given that with one simple click on an Iphone, they are shared with millions.

Just as with Tyler Clementi’s suicide, it was entirely foreseeable that this young woman might take her own life due to humiliation and embarrassment from having her nude photos viewed by everyone at her school.  At this age it is hard to see past the next day, much less to know that everyone has seen you naked and injured from a prior suicide attempt.  Her suicide was even more foreseeable given the fact that she had attempted suicide once already and so was at extremely high risk for another suicide attempt. This is precisely why when something of this nature occurs in schools now, with any known cyberbullying incident, counselors are offered to the victims to help them through what must be an excruciatingly painful ordeal.

Not only does this case present to us some of the saddest facts imaginable, the opinion issued today by the Supreme Court now gives us perhaps one of the saddest opinions ever published by an appellate court.

 

Robin Frazer Clark pursues justice for those who have personal injury claims as a result of being injured in motor vehicle wrecks, trucking wrecks, defective products, defective maintenance of roads, premises safety, medical malpractice and other incidents caused by the negligence of others.  Ms. Clark is the 50th President of the State Bar of Georgia and a Past President of Georgia Trial Lawyers Association and has practiced law in Georgia for 28 years.  Mrs. Clark is listed as one of the Top 50 Women Trial Lawyers in Georgia and is a Georgia Super Lawyer.  Robin Frazer Clark~Dedicated to the Constitution’s Promise of Justice for All.