Can Text Messages Or An Airbag Cause A Suicide?

August 21, 2019Article
Law360 Expert Analysis

Two cases, one question: Can a person be responsible for someone else’s suicide?

The question seems abstract, inviting discussions of the nature of free will, human agency and our obligations to each other. These types of discussions take place in philosophy classrooms all over the country. You can imagine a professor’s delight as she pushes students to consider ancient thinkers on such weighty topics. But if this summer is any indication, this question might be leaving the classroom and heading for the jury box.

This summer, HBO aired a two-part documentary, "I Love You, Now Die: The Commonwealth v. Michelle Carter." The documentary followed a widely covered Massachusetts criminal case, in which the commonwealth charged Michelle Carter with involuntary manslaughter for the suicide of Conrad Roy.

Roy and Carter, both teenagers, were dating. The police discovered Roy’s cellphone after the suicide and saw many texts from Carter. These texts, which encouraged Roy to kill himself, prompted the police to investigate and ultimately charge Carter.[1]

Just a few weeks after the documentary aired, the South Carolina Supreme Court answered a certified question about whether suicide presumptively broke the causal chain following a tort.[2] In that case, pharmacist and consultant John Harley Wickersham made a bad left turn and traveled through an intersection before hitting a tree. The accident resulted in serious injuries, including a broken rib, a broken jaw, broken cheek bones, a fractured skull and a ruptured left eye.[3]

He ultimately lost his eye and damaged the trigeminal nerve, which was excruciatingly painful. Given the pain medications he was using, he was not able to work as a pharmacist. About 18 months after the accident, he committed suicide. His estate sued Ford under a crashworthiness theory of liability, alleging that the airbag deployed too slowly and resulted in enhanced injuries. The theory was that the defective airbag caused the injuries that ultimately caused the suicide.

These tragic cases portend a recurring legal issue, because suicides are becoming more common. Suicide is the 10th leading cause of death in America, and the second leading cause for those in the 10-14, 15-24 and 25-34 age groups. In 2017, there were approximately 1.4 million suicide attempts.[4]

Suicide causes 123 American deaths each day. For the last year of complete statistics, there were more than two suicides for every homicide in this country.[5] The suicide rate is the highest it has been in 75 years (when the rate was declining during World War II after its peak in the Great Depression). This is an alarming public health crisis that society is fighting on multiple fronts.

Even if efforts to reduce the rising suicide rate are successful, there will likely be cases involving suicide. Law generally lags society and, more basically, cases involving a death tend to develop more slowly. As a result, suicide cases may already be working their way through the courts, and we would expect to see more in the coming years.

As most readers are likely civil lawyers, most of the discussion will be of the Wickersham case and issues that may come up in civil cases. We begin, however, with a quick consideration of the Carter criminal case. Michelle Carter’s lawyers initially tried to have the indictment thrown out because there was no potential criminal act: Carter’s texts were “pure speech” and could not be considered the cause of Conrad Roy’s death (which resulted from inhalation of carbon monoxide many miles from where Carter sent the messages).

The Massachusetts Supreme Court began by stating that suicide did not prevent criminal culpability. Two older cases established the principle. In one, the surviving player in a game of Russian roulette was found criminally responsible for the death that followed his fellow player’s turn.

In the other, a husband was culpable for his wife’s suicide because, after hearing his wife threaten suicide when he announced his intention to divorce her, he said she was “too chicken” to do it, loaded the gun and, after she struggled to reach the trigger, gave instruction on how she could do so. Neither of these old cases aged poorly, and both seem to satisfy the “reckless” component of the criminal statute.

Rejecting the argument that “pure speech” could never be criminal, the court stressed context. “The circumstances of the situation dictate whether the conduct is or is not wanton or reckless,” the court reasoned, “[and] [w]e need not — and indeed cannot — define where on the spectrum between speech and physical acts involuntary manslaughter must fall. Instead, the inquiry must be made on a case-by-case basis.”[6]

This echoes Oliver Wendell Holmes’ famous pronouncement about the First Amendment's limitation: “[T]he character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”[7] So, again, the court was right to say that speech can be criminal, and that doesn’t seem to be where the fight was.[8]

The closer call — and one more like questions that will arise in civil cases — was the court finding that there was evidence that the defendant’s conduct “overbore the victim's willpower.” Roy was depressed, and had previously attempted suicide. His texts to Carter often talked about suicide. Likewise, Wickersham sought treatment for suicidal ideation beginning eight years before the car accident and, after a long period without treatment, again in the month before his accident.

In a civil case, this type of background complicates the proximate cause issue. After a multimillion-dollar verdict at the district court in Wickersham, Ford appealed to the U.S. Court of Appeals for the Fourth Circuit. At oral argument, Ford contended that this was the first time any car manufacturer had ever been held liable for a suicide. Invoking the slippery slope, Ford said that if suicide was foreseeable to an airbag manufacturer, then it would be foreseeable in every products liability case.

The plaintiff countered that there was evidence in the record about foreseeability, pointing specifically to the manual and an expert’s opinion in the case. The manual noted that the airbag’s use could result in serious injury or death. More compellingly, the plaintiff argued that its expert established that the airbag malfunctioning resulted in face injuries, which were more likely to lead to chronic pain, serious painkillers and suicide.

The panel appeared somewhat divided, with one judge asking repeatedly how a suicide was foreseeable and another asking whether a depressed/bipolar plaintiff with a fragile mental state was different than the proverbial eggshell plaintiff with fragile bones.[9]

Ultimately, the Fourth Circuit certified the question to the South Carolina Supreme Court. The question was: “Does South Carolina recognize an ‘uncontrollable impulse’ exception to the general rule that suicide breaks the causal chain for wrongful death claims? If so, what is the plaintiff required to prove is foreseeable to satisfy causation under this exception — any injury, the uncontrollable impulse, or the suicide?”

The South Carolina Supreme Court rejected the premise that there was a general rule that suicide breaks the causal chain. The court explained that suicide did not create a special rule, and turned to traditional tort principles, explaining:

South Carolina does not recognize a general rule that suicide is an intervening act that always breaks the chain of causation in a wrongful death action. Rather, our courts apply traditional principles of proximate cause. First, the court must decide as a matter of law whether the suicide was unforeseeable. If the court determines the suicide was not unforeseeable as a matter of law, the jury must consider foreseeability. The jury must also consider causation-in-fact, including whether the defendant's tortious conduct caused a decedent to suffer from an involuntary and uncontrollable impulse to commit suicide.

The Supreme Court, citing two old cases on point, hinted that this would be a difficult theory of liability, but neither categorically excluded the theory nor created a rebuttable presumption against it. The case now returns to the Fourth Circuit, where we anticipate that the court will find as a matter of law that the suicide was not foreseeable in this case.[10]

While the suicides and theories of liability/culpability varied widely between Carter and Wickersham, the two Supreme Court considering the cases reasoned similarly. Both courts declined invitations for sweeping pronouncements or categorical rules about suicide, and opted for a contextual inquiry.

This approach is at odds with how most jurisdictions treat suicide. In our native Georgia, for example, the traditional rule is that suicide breaks the causal chain, with limited exceptions, such as the manic rage or special relationship exception.[11] This appears to be the common rule.

One commentator suggests this default rule is mechanical, and likely stems from outdated views of society.[12] He, like the Wickersham court, suggests that traditional tort principles, and careful consideration of special factors that suggest suicide may be foreseeable, are the better approach. Given the surge of suicides and inevitable entanglement of the courts with these cases, we anticipate many more challenges of the traditional rule by the contextual factor approach.


[1] The texts from the days immediately before Roy’s death are reproduced here: https://www.boston25news.com/news/all-the-text-messages-between-michelle-carter-and-conrad-roy-they-day-he-died/532942907.

[2] Wickersham v. Ford Motor Co., No. 27904, 2019 S.C. LEXIS 68, at *4 (July 24, 2019).

[3] Wickersham v. Ford Motor Co., 194 F. Supp. 3d 434, 436 (D.S.C. 2016).

[4] https://afsp.org/about-suicide/suicide-statistics/.

[5] https://www.nimh.nih.gov/health/statistics/suicide.shtml.

[6] Commonwealth v. Carter, 474 Mass. 624, 634 (2016).

[7] Schenck v. United States, 249 U.S. 47, 52 (1919).

[8] Defense counsel, to his credit, tried to strengthen the First Amendment argument by stating that criminalizing pure speech could impede candid discussions with terminally ill family members who have decided to end their life. This scenario is more sympathetic than that of a teenager, with knowledge of another teen’s suicidal propensities, encouraging the other to kill himself. The argument failed on this factual distinction; the court reasoned that the two cases were too easily distinguished to require a uniform rule. Commonwealth v. Carter, 474 Mass. 624, 636 (2016).

[9] Oral arguments are available here: https://www.ca4.uscourts.gov/oral-argument/listen-to-oral-arguments.

[10] Our understanding is that the verdict form was detailed, so the wrongful death award could theoretically be simply excised without a retrial. Ford has apparently taken the position, however, that the suicide theory infected the case and would require a retrial.

[11] City of Richmond Hill v. Maia, 301 Ga. 257, 259-60 (2017).

[12] Alex B. Long, Abolishing the Suicide Rule, 113 NW U. L. Rev. 767, 768 (2019).