Jutzi-Johnson, Karen v. United States ( 2001 )


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  • In the
    United States Court of Appeals
    For the Seventh Circuit
    No. 00-2411
    Karen Jutzi-Johnson, as administrator of the
    estate of Robert Johnson, deceased,
    Plaintiff-Appellee,
    v.
    United States of America,
    Defendant-Appellant.
    Appeal from the United States District Court
    for the Northern District of Illinois, Eastern Division.
    No. 96 C 5708--Charles P. Kocoras, Judge.
    Argued January 23, 2001--Decided September 4, 2001
    Before Posner, Easterbrook, and Ripple,
    Circuit Judges.
    Posner, Circuit Judge. Robert Johnson
    hanged himself in his cell in the
    Metropolitan Correctional Center, the
    federal jail in Chicago, where he had been
    held for six months awaiting trial for
    extortion. His estate brought this suit for
    damages against the United States under the
    Federal Torts Claim Act, 28 U.S.C. sec.sec.
    1346(b), 2671-80, charging that the jail
    was negligent in failing to identify him
    as a suicide risk and take suitable
    preventive measures. The Act incorporates
    local law, 
    id., sec. 1346(b),
    and so the
    question is the liability of the United
    States under the principles of Illinois
    tort law, though so far as bears on issues
    of liability in this case they are the
    general principles of Anglo-American tort
    law, not anything special to Illinois.
    The district judge, after a bench trial,
    awarded the estate $1.8 million in damages,
    of which $1.6 million was intended to
    compensate for the pain and suffering that
    Johnson suffered during the period of
    several minutes in which he remained alive
    before strangling while hanging from the
    noose that he had made out of a bedsheet
    and suspended from an exposed pipe that
    ran beneath the ceiling of his cell. The
    other $200,000 in damages were for the
    loss to his family resulting from his
    death.
    Although the initial psychological
    screening that Johnson like all new inmates
    underwent revealed no history of
    psychiatric disorders or suicide attempts
    and no suicidal thoughts, and although this
    was not his first spell of incarceration,
    he deteriorated markedly during his stay in
    the jail. He scratched and picked at sores
    on his body until they bled so copiously
    that they stained his clothes and bedsheets
    and were noticed by other inmates. One of
    the guards observed that Johnson was a
    loner, slept a lot during the day, seemed
    nervous, had poor hygiene, and had a lot
    of sores that bled; yet the guard did not
    think to refer Johnson to the medical or
    psychology department of the jail. Another
    inmate told at least one other member of
    the prison staff that Johnson had a
    nervous problem and might need an
    antidepressant, but nothing was done about
    this information either. The day before
    Johnson killed himself his cellmate
    importuned him to see a physician’s
    assistant and filled out a sick-call form
    in which the cellmate stated: "Open sores
    all over body caused from nerves. Request
    to see a psychologist or psychiatrist."
    Johnson presented the form to the
    physician’s assistant the next day, but she
    neglected to read it and when he told her
    his roommate was taking some kind of
    medication that he thought he should be
    taking as well she merely told him to make
    an appointment to see the jail
    psychologist. He did not do that, but
    instead hanged himself 12 hours later.
    The government does not deny that the
    jail’s staff was negligent in failing to
    discover that Johnson had some kind of
    nervous condition and to take steps to
    deal with it. The obsessive scratching and
    picking, in the context of a general
    pattern of abnormal behavior, should have
    alerted the staff to the fact that Johnson
    might have a psychiatric illness. The
    physician’s assistant whom Johnson
    consulted should have read the sick-call
    form and had she done so she might well
    have sent him directly to the jail
    psychologist rather than relying on him to
    make an appointment to see the
    psychologist. But it was the plaintiff’s
    burden to prove both that Johnson would
    not have committed suicide had the jail’s
    staff acted responsibly, e.g., Beul v. ASSE
    Int’l, Inc., 
    233 F.3d 441
    , 445-47 (7th
    Cir. 2000); Merco Distributing Corp.
    v.Commercial Police Alarm Co., 
    267 N.W.2d 652
    (Wis. 1978); Guthrie v. American
    Protection Industries, 
    206 Cal. Rptr. 834
    ,
    836 (Cal. App. 1984); Vastola v.
    Connecticut Protective System, Inc., 
    47 A.2d 844
    , 845 (Conn. 1946), and that his
    suicide was a foreseeable as well as
    actual consequence of the staff’s
    negligence.
    The issue of causation is doctrinally
    straightforward; not so the issue of the
    foreseeability of suicide. When failure to
    prevent a suicide is claimed to be
    negligent, the issue of foreseeability is
    analyzed under the rubric of "supervening
    cause" and the general rule is that the
    negligent actor is not liable for the
    victim’s decision to kill himself. The
    suicide is said to be a supervening cause
    of the victim’s loss of his life, breaking
    the chain of responsibility that would
    otherwise link the loss to the negligent
    act. E.g., Beul v. ASSE Int’l, 
    Inc., supra
    , 233 F.3d at 447; McMahon v. St.
    Croix Falls School District, 
    596 N.W.2d 875
    , 879 (Wis. App. 1999); Wyke v. Polk
    County School Board, 
    129 F.3d 560
    , 574-75
    (11th Cir. 1997); Bruzga v. PMR Architects,
    P.C., 
    693 A.2d 401
    (N.H. 1997); Edwards v.
    Tardif, 
    692 A.2d 1266
    , 1269 (Conn. 1997);
    W. Page Keeton et al., Prosser and Keeton
    on the Law of Torts sec. 44, p. 311 (5th
    ed. 1984). Of course this is just a
    conclusion, not reasoning; but it is a
    conclusion sustained by reasoning about the
    unforeseeability of most suicides and the
    role of foreseeability in determining tort
    liability. If an employer refuses an
    employee’s request for a raise, the latter
    may respond by killing himself, and yet
    the employer even if somehow negligent in
    failing to give the employee the raise
    would not be legally responsible for the
    death, just as if through the carelessness
    of the driver a truck spilled a toxic
    substance and a passerby scraped it up and
    poisoned his mother-in-law with it the
    driver would not be liable to the mother-
    in-law’s estate; the son-in-law’s criminal
    act would be deemed a supervening cause.
    See Rowe v. State Bank of Lombard, 
    531 N.E.2d 1358
    , 1361 (Ill. 1988); Giebel v.
    Richards, 
    591 N.W.2d 901
    (Wis. App. 1999);
    Henry v. Merck & Co., 
    877 F.2d 1489
    , 1494-
    97 (10th Cir. 1989); Shelton v. Board of
    Regents, 
    320 N.W.2d 748
    , 752-53 (Neb.
    1982).
    A person is not liable for such
    improbable consequences of negligent
    activity as could hardly figure in his
    deciding how careful he should be.
    Liability in such circumstances would serve
    no deterrent, no regulatory purpose; it
    would not alter behavior and increase
    safety. Nothing would be gained by imposing
    liability in such a case but compensation,
    and compensation can be obtained more
    cheaply by insurance. But by the same
    token the doctrine of supervening cause is
    not applicable when the duty of care
    claimed to have been violated is precisely
    a duty to protect against ordinarily
    unforeseeable conduct. A risk unforeseeable
    to an ordinary person is foreseeable to a
    specialist who assumes a duty to prevent
    the risk from materializing. The duty is a
    recognition that the unforeseeable has
    become foreseeable to the relevant
    community. And so a hospital that fails to
    maintain a careful watch over patients
    known to be suicidal is not excused by the
    doctrine of supervening cause from
    liability for a suicide, e.g., DeMontiney
    v. Desert Manor Convalescent Center, 
    695 P.2d 255
    , 259-60 (Ariz. 1985), any more
    than a zoo can escape liability for
    allowing a tiger to escape and maul people
    on the ground that the tiger is the
    supervening cause of the mauling. City of
    Mangum v. Brownlee, 
    75 P.2d 174
    (Okla.
    1938); see also Scorza v. Martinez, 
    683 So. 2d 1115
    , 1117 (Fla. App. 1996);
    Behrens v. Bertram Mills Circus, Ltd.,
    [1957] 2 Q.B. 1, 1 All E.R. 583 (1957). In
    both cases there is a foreseeable, in the
    sense of probable, hazard which precautions
    can and should be taken in order to
    lessen. So we may set the language of
    supervening cause to one side and ask
    simply whether Johnson’s suicide was a
    foreseeable consequence of the negligence
    of his jailers in responding ineffectually
    to his abnormal behavior.
    But first we should consider whether
    there was any causal relation between that
    negligence and the suicide. We think not.
    Johnson did not commit suicide because he
    had sores on his body. As nearly as can be
    reconstructed from the evidence, he
    committed suicide because he was upset
    about being in jail, separated from his
    family (including a daughter born while he
    was in jail) and facing a prison term if
    he was convicted. The scratching and the
    suicide were the consequences of an
    underlying unhappiness. Nothing the jail’s
    staff could have done would have alleviated
    Johnson’s concerns about separation and
    imprisonment. They were inherent in his
    situation. True, had the jail’s
    psychologist interviewed him, Johnson might
    have expressed suicidal thoughts and in
    that event the jail would doubtless have
    placed him on suicide watch and thereby
    prevented him from killing himself. (At
    least it would have moved him out of a
    cell that, because of the exposed pipe
    near the ceiling, made it easy for an
    inmate to hang himself.) "Might" is the
    operative word. Johnson had no history of
    psychiatric illness and had not revealed
    any suicidal ideation at his intake exam.
    Until nudged by his roommate to visit the
    physician’s assistant he had made no effort
    to contact the medical (including
    psychiatric) personnel of the jail. It is
    sheer conjecture that an interview with the
    jail psychologist would have produced
    sufficient information to have enabled the
    psychologist to infer that Johnson was a
    suicide risk and place him on suicide
    watch. The psychologist would have noticed
    Johnson’s sores--would even, we may assume,
    have pronounced him or his behavior
    bizarre. But bizarre behavior and suicidal
    behavior are different, and there is no
    evidence that suicidal tendencies can be
    inferred from the kind of behavior that
    Johnson exhibited.
    It is true that jail inmates are much
    more likely to commit suicide than free
    persons are--in fact, nine times as likely.
    Lindsay M. Hayes & Joseph R. Rowan,
    National Study of Jail Suicides: Seven
    Years Later 54 (National Center on
    Institutions and Alternatives, Feb. 1988).
    According to the study just cited (the
    only one we have found), 12.9 percent of
    jail suicides occur within the first three
    hours of confinement, 32.8 percent within
    the first 24 hours, 62.1 percent within
    the first two weeks, 72.8 percent within
    the first month, 89.2 within the first
    four months, and 97.4 within the first
    seven months. The likelihood of suicide is
    highest between 2 and 14 days of
    confinement, and only 10.8 percent of
    suicides occur after 5 months. 
    Id. at 36.
    Thus, when Johnson was in his worst
    psychological state, after 5 months of
    being in jail, the statistical likelihood
    of suicide was diminishing rapidly. No
    evidence has been offered that a prisoner
    who has no history of suicide attempts or
    even suicidal thoughts should be considered
    a suicide risk merely because, months after
    his imprisonment began, he displays
    symptoms of a possible psychiatric
    disturbance.
    If the jail psychologist would not have
    diagnosed Johnson as suicidal, there is no
    reason to believe that his suicide would
    have been averted. It is here that the
    analysis of causality and the analysis of
    foreseeability, though distinct (the issue
    of foreseeability does not arise until the
    defendant’s negligent act is identified as
    a cause of the plaintiff’s injury), blend
    insensibly into each other. The reason that
    measures to prevent Johnson’s suicide
    probably would not have been taken even if
    the jail’s staff had been exercising due
    care is that the suicide was not a
    foreseeable consequence of Johnson’s
    behavior. The population of prisons and
    jails is not a random sample of American
    citizens. It is largely a subset of the
    criminal population (not entirely, since
    some pretrial detainees are innocent of the
    crimes for which they are awaiting trial),
    itself a population prone to
    abnormalbehavior, and the conditions of
    incarceration place the prisoners under
    considerable psychological strain. Abnormal
    behavior in jails and prisons is therefore
    common. Whether such behavior connotes a
    substantially enhanced suicide risk after
    the first few days or weeks or months of
    incarceration is a question on which the
    record of this case, including the expert
    evidence, casts no light. Had Johnson
    developed infections from his obsessive
    picking and scratching, the government
    might well be liable; for infection is a
    foreseeable result of that behavior.
    Suicide, so far as the record shows, is
    not.
    The psychiatric condition most closely
    associated with suicide is severe
    ("clinical") depression, and a disturbed
    sleep pattern is a symptom of depression.
    But of course many people who sleep badly
    are not depressed, and most people who are
    depressed do not commit suicide. No
    evidence was presented that compulsive
    scratching is a symptom of depression. Had
    the staff been more alert, maybe they
    would have stumbled on some underlying
    psychiatric condition predictive of
    suicide. But maybe not, because no one
    knows whether Johnson committed suicide
    because he was depressed or because he
    could not stand the prospect of
    imprisonment--as the district judge well
    understood. He asked "why did Bob Johnson
    take his own life" and answered that "the
    evidence presented some reasons but does
    not establish any of them with certainty.
    While an official declaration by this Court
    might be useful in trying to come to grips
    with this human tragedy, no explanation
    will be offered because it would
    necessarily be dependent upon an
    inappropriate degree of speculation."
    Precisely. The judge should have ended his
    opinion there. Since no one knows why
    Johnson killed himself, there is no basis
    for thinking that due care by the staff
    would have prevented him from doing so (by
    detecting the risk and, as a consequence,
    placing him on suicide watch), or that the
    staff should have foreseen that suicide
    would be a likely result of its
    beingcareless.
    Although our analysis makes it
    unnecessary to consider the government’s
    objection to the size of the award of dam
    ages for pain and suffering, we shall
    address that objection in an effort to
    provide some guidance for future cases. The
    judge awarded the plaintiff $1.6 million
    for Johnson’s pain and suffering without
    any explanation of how he had arrived at
    this amount, apart from noting that "there
    is no dispute that Bob Johnson did not die
    instantly." Juries do not explain their
    reasoning process, but Fed. R. Civ. P.
    52(a) requires judges, when they are the
    triers of fact, to make written findings
    in support of their conclusions. This
    means, when the issue is the amount of
    damages, that the judge must indicate the
    reasoning process that connects the
    evidence to the conclusion, here the
    evidence that Johnson may have remained
    conscious for anywhere from three to twenty
    minutes while hanging and the conclusion
    that his estate should receive $1.6 million
    for his pain and suffering. The judge
    should have determined what the best esti
    mate of the amount of time that Johnson
    remained conscious was and explained why
    (supposing it was four minutes) an award
    of $400,000 for each minute of pain and
    suffering is appropriate. He did neither.
    Awarding any amount of damages for pain
    and suffering has long been criticized as
    requiring the trier of fact to monetize a
    loss that is incommensurable with any
    monetary measure. We do not agree with the
    criticism. Pain and suffering are perceived
    as costs, in the sense of adversities that
    one would pay to be spared, by the people
    who experience them. Unless tortfeasors are
    made to bear these costs, the cost of
    being adjudged careless will fall and so
    there will be more accidents and therefore
    more pain and suffering. The problem of
    figuring out how to value pain and
    suffering is acute, however. Various
    solutions, none wholly satisfactory, have
    been suggested, such as asking the trier
    of fact, whether jurors or judge, to
    imagine how much they would pay to avoid
    the kind of pain and suffering that the
    victim of the defendant’s negligence
    experienced or how much they would demand
    to experience it willingly, 2 Dan B.
    Dobbs, Dobbs Law of Remedies: Damages-
    Equity-Restitution sec. 8.1(4), p. 383 (2d
    ed. 1993); or to estimate how much it
    would cost the victim (if he survived) to
    obtain counseling or therapy to minimize
    the pain and suffering, Law Commission,
    Damages for Personal Injury: Non-Pecuniary
    Loss 8 (Consultation Paper No. 140, 1995);
    Andrews v. Grand & Toy Alberta Ltd.,
    (1978) 83 D.L.R. (3d) 452, 476-77 (Can. S.
    Ct.), or how much they would demand to
    assume the risk of the pain and suffering
    that the victim experienced. Mark
    Geistfeld, "Placing a Price on Pain and
    Suffering: A Method for Helping Juries
    Determine Tort Damages for Nonmonetary
    Injuries," 
    83 Cal. L
    . Rev. 773, 818-28
    (1995). If they said they would demand
    $1,000 to assume a .01 risk of such a
    misfortune, this would imply that the
    victim should receive an award of $100,000,
    as that is the judgment that, if
    anticipated, would have induced the
    defendant to spend up to $1,000 to
    prevent. Talk is cheap, though; and maybe
    a better approach would be to present the
    jury with evidence of how potential victims
    themselves evaluate such risks, an approach
    that has been used to infer the value of
    life from people’s behavior in using safety
    devices such as automobile seatbelts or in
    demanding risk premiums to work at
    hazardous jobs. See, e.g., Richard Thaler
    & Sherwin Rosen, "The Value of Saving a
    Life: Evidence from the Labor Market," in
    Household Production and Consumption 265
    (Nestor E. Terleckyj ed. 1975); W. Kip
    Viscusi, "The Value of Risks to Life and
    Health," 31 J. Econ. Lit. 1912 (1992);
    Paul Lanoie, Carmen Pedro & Robert Latour,
    "The Value of a Statistical Life: A
    Comparison of Two Approaches," 10 J. Risk
    & Uncertainty 235 (1995).
    Most courts do not follow any of these
    approaches. Instead they treat the
    determination of how much damages for pain
    and suffering to award as a standardless,
    unguided exercise of discretion by the
    trier of fact, reviewable for abuse of
    discretion pursuant to no standard to guide
    the reviewing court either. To minimize the
    arbitrary variance in awards bound to
    result from such a throw-up-the-hands
    approach, the trier of fact should, as is
    done routinely in England, J. Munkman,
    Damages for Personal Injury and Death 162-
    63 (7th ed. 1985); Law 
    Commission, supra, at 19-22
    , be informed of the amounts of
    pain and suffering damages awarded in
    similar cases. See, e.g., Johnson v. Rogers
    & Phillips, Inc., 
    753 So. 2d 286
    , 295 (La.
    App. 1999); Oscar G. Chase, "Helping Jurors
    Determine Pain and Suffering Awards," in
    Reforming the Civil Justice System 340
    (Larry Kramer ed. 1996); James F.
    Blumstein, Randall R. Bovbjerg & Frank A.
    Sloan, "Beyond Tort Reform: Developing
    Better Tools for Assessing Damages for
    Personal Injury," 8 Yale J. Reg. 171, 184-
    85 (1991). And when the trier of fact is a
    judge, he should be required as part of
    his Rule 52(a) obligation to set forth in
    his opinion the damages awards that he
    considered comparable. We make such
    comparisons routinely in reviewing pain and
    suffering awards, see, e.g., Tullis v.
    Townley Engineering & Mfg. Co., 
    243 F.3d 1058
    , 1066 (7th Cir. 2001); Riemer v.
    Illinois Dept. of Transportation, 
    148 F.3d 800
    , 808 (7th Cir. 1998); DeBiasio v.
    Illinois Central R.R., 
    52 F.3d 678
    , 689
    (7th Cir. 1995), as do other courts. See,
    e.g., Smith v. KMart Corp., 
    177 F.3d 19
    ,
    31-32 (1st Cir. 1999); Mathie v. Fries,
    
    121 F.3d 808
    , 813-14 (2d Cir. 1997);
    Williams v. Chevron U.S.A., Inc., 
    875 F.2d 501
    , 506 (5th Cir. 1989). It would be a
    wise practice to follow at the trial level
    as well.
    But can we prescribe it in a case such as
    this where the rule of decision is state
    rather than federal? The Supreme Court has
    held that a rule requiring uniformity in
    damages awards is, like a cap on damages,
    see Knowles v. United States, 
    91 F.3d 1147
    , 1150 (8th Cir. 1996); Aguilar v.
    United States, 
    920 F.2d 1475
    , 1478 (9th
    Cir. 1990); Reilly v. United States, 
    863 F.2d 149
    , 161 (1st Cir. 1988), substantive
    within the meaning of the Erie doctrine.
    Gasperini v. Center for Humanities, Inc.,
    
    518 U.S. 415
    , 428-31 (1996). But the Erie
    doctrine, a limitation on federal judicial
    intervention in disputes that arise under
    state law, is not directly applicable to a
    suit against the United States. Here state
    law is being borrowed only because there
    is no well developed body of federal
    common law concerning the common torts such
    as negligence, not because there is a
    state interest in the outcome of the suit.
    It is true that Erie was not merely a
    constitutional decision but also an
    interpretation of the Rules of Decision
    Act, 28 U.S.C. sec. 1652--but that Act
    provides only that "the laws of the
    several states . . . shall be regarded as
    rules of decision in civil actions in the
    courts of the United States, in cases
    where they [the laws of the several
    states] apply" (emphasis added), and they
    do not apply, in the sense of govern, the
    conduct of the United States.
    The distinction between borrowing and
    applying state law is perhaps most clearly
    established in cases involving the
    borrowing of a state statute of limitations
    for use in litigation based on a federal
    statute. See, e.g., West v. Conrail, 
    481 U.S. 35
    , 39 n. 4 (1987); Doe v. Blue Cross
    & Blue Shield United of Wisconsin, 
    112 F.3d 869
    , 873-74 (7th Cir. 1997); McIntosh
    v. Antonino, 
    71 F.3d 29
    , 36 (1st Cir.
    1995); Hemmings v. Barian, 
    822 F.2d 688
    ,
    689-90 (7th Cir. 1987). As we put it in
    Hemmings, "When a federal court borrows a
    state statute of limitations for use in
    connection with a federal statute that does
    not have its own statute of limitations,
    the court is not applying state law; it is
    applying federal law. It looks to state
    law for guidance. . . . The analysis
    would, however, be different if Count I
    were a diversity rather than federal-
    question count. For purposes of the Erie
    doctrine the statute of limitations is
    substantive rather than procedural, and the
    federal court therefore applies state law--
    it doesn’t just borrow it." 
    Id. Nor is
    a practice of consulting damages
    awards in comparable cases for purposes of
    facilitating a more thoughtful,
    disciplined, and informed award in the
    particular case the same thing as a rule
    limiting awards within a range set by
    previous cases, one understanding of the
    state law rule involved in Gasperini: an
    award of damages was not to "deviate
    materially" from awards that had been made
    in comparable cases. Nor is it easy to
    characterize a practice of not consulting
    comparable awards as a remedial rule, hence
    "substantive" in the Erie sense, rather
    than as a rule of evidence; or a practice
    of such consultation by a reviewing court
    endeavoring to carry out its duty to
    prevent abuses of discretion in the award
    of damages as anything more than a rule of
    appellate procedure. So on multiple
    grounds, what indeed appears to be the
    rule in Illinois, that comparable awards
    for pain and suffering are not to be
    considered at either the appellate or the
    trial stage, see, e.g., Epping v.
    Commonwealth Edison Co., 
    734 N.E.2d 916
    ,
    918-19 (Ill. App. 2000); Barry v. Owens-
    Corning Fiberglas Corp., 
    668 N.E.2d 8
    , 14
    (Ill. App. 1996); Simmons v. University of
    Chicago Hospitals & Clinics, 
    617 N.E.2d 278
    , 288 (Ill. App. 1993), does not bind
    us in this case.
    In any event, any argument that we should
    not look at comparable awards in reviewing
    the award of pain and suffering damages in
    this case has been forfeited by the
    plaintiff, who, while citing Epping for the
    proposition stated in her brief that "not
    all courts agree that comparison of damage
    awards aids in evaluating their propriety,"
    has not argued that Illinois forbids such
    comparisons or that, if it does, its rule
    binds us. Instead, both parties have cited
    what they deem comparable cases. Only their
    notions of comparability are stunted. The
    plaintiff cites three cases in which
    damages for pain and suffering ranging from
    $600,000 to $1 million were awarded, but
    in each one the pain and suffering
    continued for hours, not minutes. The
    defendant confined its search for
    comparable cases to other prison suicide
    cases, implying that prisoners experience
    pain and suffering differently from other
    persons, so that it makes more sense to
    compare Johnson’s pain and suffering to
    that of a prisoner who suffered a
    toothache than to that of a free person
    who was strangled, and concluding absurdly
    that any award for pain and suffering in
    this case that exceeded $5,000 would be
    excessive. The parties should have looked
    at awards in other cases involving
    asphyxiation, for example cases of
    drowning, which are numerous. See, e.g.,
    Millman v. County of Butler, 
    504 N.W.2d 820
    , 826 (Neb. 1993); Snyder v. Whittaker
    Corp., 
    839 F.2d 1085
    , 1092-93 (5th Cir.
    1988); Dontas v. City of New York, 
    584 N.Y.S.2d 134
    (App. Div. 1992) (per curiam);
    Turner v. Parish of Jefferson, 
    721 So. 2d 64
    , 76-78 (La. Ct. App. 1999); Stissi v.
    Interstate & Ocean Transport Co., 590 F.
    Supp. 1043, 1048-49 (E.D.N.Y. 1984), aff’d
    in relevant part, 
    765 F.2d 370
    , 377 (2d
    Cir. 1985). Had they done so, they would
    have come up with an award in the range of
    $15,000 to $150,000.
    There is more wrong with the award. The
    $1.6 million awarded by the judge was far
    higher than the amount requested by the
    plaintiff (which was $300,000 to $600,000)
    and came after the judge, in accordance
    with the principle of comparative
    negligence, had reduced the award on the
    ground that Johnson’s own conduct, that is,
    his hanging himself, required his estate to
    bear some of the responsibility for the
    pain and suffering that the hanging
    inflicted on him. The judge did not
    indicate from what level (or by what
    percentage) he had reduced the award to
    $1.6 million.
    But as we said the plaintiff failed to
    establish liability. The judgment must
    therefore be reversed with instructions to
    enter judgment for the government.
    Reversed.
    RIPPLE, Circuit Judge, dissenting.
    1.
    On June 7, 1993, Robert Johnson committed
    suicide by hanging himself from an overhead
    pipe using his bedsheet. The facts that
    led up to that tragedy are the basis of
    this lawsuit.
    An understanding of the issue before us--
    and of the import of the majority’s
    conclusion--will be best understood if the
    circumstances surrounding Mr. Johnson’s
    suicide are placed in the broader factual
    context of the case.
    Mr. Johnson was arrested and incarcerated
    at Metropolitan Correction Center ("MCC")
    in Chicago while awaiting trial on
    extortion charges. During his
    incarceration, Mr. Johnson was first
    detained on the thirteenth floor, and
    later, was moved to the seventeenth. By
    all accounts, Mr. Johnson was not well on
    either floor. Mr. Johnson was described by
    inmates and guards alike as being a
    nervous and anxious person. Different
    inmates testified that Mr. Johnson did not
    eat or sleep well and that his emotional
    well-being was poor. Inmates alternately
    describe Mr. Johnson’s mood as very
    nervous, unstable, and worried. They
    testified that Mr. Johnson spent a great
    deal of time by himself and that he became
    less and less social as his incarceration
    progressed. Mr. Johnson’s last cellmate,
    Alvin McCarver, also testified that during
    the night, Mr. Johnson would be up
    alternately vomiting and brushing his teeth
    until his gums bled./1
    Even more apparent than his general state
    of mind was a disturbing nervous habit
    that Mr. Johnson acquired. Mr. Johnson
    would scratch and pick at his skin,
    causing open sores that would bleed. Once
    he would cause these sores, Mr. Johnson
    would continue to pick at them with his
    fingers, manicure scissors, playing cards,
    or apparently anything else that was
    available. This continual scratching and
    picking caused the sores to fester and
    ooze blood; they never properly healed./2
    Several inmates went out of their way to
    help Mr. Johnson. Thomas Johnson testified
    that, a few days prior to Mr. Johnson’s
    suicide, Johnson had told a guard that he
    thought Mr. Johnson was in need of
    psychiatric care. Jeffery Sorrenson, a
    former cellmate of Mr. Johnson, testified
    that he went to a female officer to
    complain about Mr. Johnson’s nervous habits
    and hygiene. Derrick Anderson encouraged
    Mr. Johnson to see a doctor and even
    accompanied him to sick call on the final
    morning of Mr. Johnson’s life.
    The efforts of two inmates in particular
    are especially noteworthy. Richard Dover
    met Mr. Johnson while they both were on
    the thirteenth floor; Dover also was placed
    on the seventeenth floor with Mr. Johnson.
    Dover testified that two other inmates and
    he approached at least three guards in an
    attempt to get medical assistance for Mr.
    Johnson. Dover pointed out Mr. Johnson’s
    symptoms and said that Mr. Johnson needed
    to go to a hospital. Dover testified that
    nothing came of these conversations: "We
    always stayed up onto the guards, trying
    to get them to do something about it, and
    they never did." Dover Dep. at 21.
    Alvin McCarver, Mr. Johnson’s final
    cellmate, also sought help for Mr. Johnson.
    Even though McCarver shared a cell with
    Mr. Johnson for only a short time,
    McCarver already knew of Mr. Johnson’s
    problems just from living on the same
    floor. After becoming cellmates, however,
    his awareness of the problem increased. One
    day, while Mr. Johnson was at an attorney
    visit, McCarver brought a unit officer into
    their cell to see Mr. Johnson’s blood-
    stained sheets./3 McCarver told the
    officer that "[s]omething needs to be done
    about this. This guy needs some help. He
    has a nervous condition." McCarver Dep. at
    27. Because McCarver believed the unit
    officer had not done anything, McCarver
    then spoke to Mark Cunneen, a counselor
    assigned to the seventeenth floor. McCarver
    told Cunneen that Mr. Johnson needed
    psychiatric care and that perhaps
    antidepressant medication was in order.
    McCarver testified that this meeting
    happened only days before Mr. Johnson
    committed suicide.
    The night before Mr. Johnson’s suicide,
    McCarver filled out a sick call sheet for
    Mr. Johnson. A sick call sheet was a
    request to see medical personnel. On the
    sheet, McCarver described Mr. Johnson’s
    complaint as open sores caused by nerves.
    In the box next to the question whether
    the complaint was serious, McCarver checked
    yes twice. However, when the physician’s
    assistant ("PA") saw Mr. Johnson the next
    morning, she did not have the sick call
    sheet with her, in violation of prison
    policy.
    Mr. Johnson told the PA that he was
    nervous and that he wanted something to
    calm him down. Again in violation of
    policy, the PA told Mr. Johnson to make an
    appointment with a psychologist rather than
    referring Mr. Johnson personally.
    The compassionate attempts by inmates to
    help Mr. Johnson were to little avail.
    There is no evidence that any prison
    official attempted to get Mr. Johnson any
    type of medical attention. At least one
    prison official testified that he knew of
    Mr. Johnson’s problems. Officer James Young
    admitted that McCarver had confronted him
    about the blood-stained linens, but he
    nonetheless failed to seek assistance for
    Mr. Johnson. Other prison officials claimed
    to have no memory of Mr. Johnson. Cunneen,
    the counselor that McCarver testified he
    spoke to, claimed no recollection either of
    Mr. Johnson or of any conversation with
    McCarver regarding Mr. Johnson. The
    district court found that McCarver’s
    testimony was "adamant and precise" and
    that Cunneen’s testimony "strains
    credulity." R.38 at 14.
    Through their combined efforts, inmates
    were able to cajole Mr. Johnson into
    seeking help for his problems. After months
    of suffering alone, Mr. Johnson went to
    the PA in hopes of receiving help. When
    the PA failed to treat Mr. Johnson
    adequately, the last opportunity to help
    Mr. Johnson was lost. Twelve hours later,
    Mr. Johnson took his own life.
    2.
    The majority holds that the United States
    cannot be liable for Mr. Johnson’s death.
    Specifically, the majority reasons that Mr.
    Johnson’s suicide was not foreseeable and
    that the Government was not the proximate
    cause of Mr. Johnson’s death. I
    respectfully disagree.
    "The district court’s determination of
    foreseeability is a factual determination
    reviewable only for clear error." United
    States v. Bullis, 
    77 F.3d 1553
    , 1564 (7th
    Cir. 1996). I do not believe that the
    district court clearly erred in its
    determination that Mr. Johnson’s suicide
    was foreseeable. The record offers ample
    evidence that demonstrates that prison
    officials should have known that Mr.
    Johnson was suffering severe emotional
    distress. As the district court
    noted,pretrial detainees like Mr. Johnson
    have a greater risk of suicide than the
    population in general. This reality should
    have alerted prison officials to scrutinize
    seriously the numerous reports they
    received concerning Mr. Johnson’s
    deteriorating psychiatric state.
    Inmates testified that Mr. Johnson
    brushed his teeth until they bled, that he
    was up at nights vomiting, and that he
    scratched his skin until it bled. Mr.
    Johnson was described as a loner who had
    problems sleeping and eating. On more than
    one occasion, inmates such as Alvin
    McCarver brought these symptoms to the
    attention of prison officials. Prison
    officials chose to do nothing.
    Undoubtedly, it is easier for officials
    to know that someone is having suicidal
    thoughts when that person says that he is
    having suicidal thoughts. However, having
    an inmate in custody creates a duty of
    care that must include enough attention to
    mental health concerns that inmates with
    obvious symptoms receive medical attention.
    Prison officials had numerous opportunities
    to meet their responsibilities to help Mr.
    Johnson, but no one did. One cannot avoid
    responsibility by putting one’s head in the
    sand.
    3.
    The court reviews factual findings, such
    as the existence of proximate cause, for
    clear error and will not reverse if the
    district court’s findings are plausible in
    light of the entire record. See Anderson
    v. Bessemer City, 
    470 U.S. 564
    , 573
    (1985); Wyletal v. United States, 
    907 F.2d 49
    , 50 (7th Cir. 1990) (factual findings
    in Federal Tort Act cases reviewed under
    clearly erroneous standard); Susnis v.
    Radfar, 
    739 N.E.2d 960
    , 967 (Ill. App. Ct.
    2000) (under Illinois law, questions of
    proximate causation are questions of fact).
    "A factual determination is clearly
    erroneous only if, after considering all
    the evidence, the reviewing court is left
    with the definite and firm conviction that
    a mistake has been committed." United
    States v. Charles, 
    238 F.3d 916
    , 918 (7th
    Cir. 2001) (internal quotation marks and
    citations omitted). Additionally, "a
    district court’s choice between two
    permissible inferences from the evidence
    cannot be clearly erroneous." See 
    id. Under Illinois
    law, "proximate cause can only be
    established when there is a reasonable
    certainty that the defendant’s acts caused
    the injury" or the increased risk of
    future injury. Henderson v. Sheahan, 
    196 F.3d 839
    , 852 (7th Cir. 1999) (internal
    quotation marks and citations omitted).
    I cannot join the majority view that the
    district court was clearly erroneous in its
    determination that the United States was
    the proximate cause of Mr. Johnson’s death.
    The majority correctly notes that suicide
    is generally viewed as a supervening cause
    breaking the chain of causation. However,
    there are circumstances that render this
    rule inapplicable. "As a general rule,
    absent some type of custodial relationship,
    one cannot be held liable for the suicide
    of another." Wyke v. Polk County Sch. Bd.,
    
    129 F.3d 560
    , 574 (11th Cir. 1997). By
    articulating the qualification "absent some
    type of custodial relationship," our
    colleagues in the Eleventh Circuit
    acknowledged that the general rule makes no
    sense when a higher duty of care is
    required because "the State ’takes a person
    into its custody and holds him there
    against his will,’ hence depriving him of
    liberty." Butera v. Dist. of Columbia, 
    235 F.3d 637
    , 648 (D.C. Cir. 2001) (quoting
    DeShaney v. Winnebago County Dep’t of Soc.
    Servs., 
    489 U.S. 189
    , 199-200 (1989)); see
    also Bruzga v. PMR Architects, P.C., 
    693 A.2d 401
    , 403 (N.H. 1997). "[H]aving
    stripped them [incarcerated persons] of
    virtually every means of self- protection
    and foreclosed their access to outside aid,
    the government and its officials are not
    free to let the state of nature take its
    course." Farmer v. Brennan, 
    511 U.S. 825
    ,
    833 (1994).
    Here, prison officials knew that Mr.
    Johnson was suffering severe emotional
    distress. Given that knowledge, they had an
    affirmative duty to aid Mr. Johnson. Time
    and again, when presented with information
    that Mr. Johnson was suffering, officials
    failed to act. The combination of this
    inaction caused Mr. Johnson’s death.
    I believe it to be entirely permissible
    for the district court to determine that
    the collective failure of prison officials
    to provide medical assistance for Mr.
    Johnson was the proximate cause of his
    death. Accordingly, the district court’s
    conclusion is not clearly erroneous and
    must be upheld.
    4.
    I also cannot join the majority’s
    discussion of the damage award in this
    case. First, the point should be made that
    the majority concedes that "our analysis
    makes it unnecessary" to consider the
    damage award in this case. Maj. Op. at 8.
    Because the discussion of this issue is
    not necessary to determine the outcome of
    this case, it is "purely dicta" and "does
    not constitute the law of the case or any
    other binding precedent for our current
    consideration." Thomas & Betts Corp. v.
    Panduit Corp., 
    138 F.3d 277
    , 289 n.4 (7th
    Cir. 1998). We have noted that:
    Dicta are the parts of an opinion that are
    not binding on a subsequent court, whether
    as a matter of stare decisis or as a
    matter of law of the case. . . . They are
    non-binding for two reasons. First, not
    being integral elements of the analysis
    underlying the decision . . . they may not
    express the judges’ most careful, focused
    thinking. Second, to give the inessential
    parts of an opinion the force of law would
    give judges too much power, and of an
    essentially legislative character; we could
    hardly consider ourselves judges in the
    Anglo-American tradition were we to
    interrupt this opinion to offer our
    thoughts.
    Wilder v. Apfel, 
    153 F.3d 799
    , 803 (7th
    Cir. 1998).
    The wisdom of this time-honored approach
    to dicta is well-justified by the
    majority’s expressed view that hanging
    deaths and death by drowning are
    comparable. Hanging is an excruciatingly
    painful and cruel way to die. Of the
    forty-eight states that once allowed
    executions by hanging, only two
    jurisdictions still do. More specifically:
    In properly-performed hangings, the neck
    breaks immediately and unconsciousness is
    supposedly instantaneous. However, hanging
    has been called an "art," and considerable
    skill is necessary to ensure that the neck
    breaks . . . . In most instances, however,
    this [break] does not result, and the
    condemned dies a violent and lingering
    death. If the drop is too long, the
    prisoner may be decapitated, causing great
    indignity to the body. If the drop is too
    short, the inmate may slowly strangle to
    death. In strangulation, extreme pain is
    evident: the eyeballs pop out, the tongue
    swells and protrudes, the rope can pull
    hunks of flesh off the face, and the neck
    elongates and distorts. As it is so often
    improperly performed, the risk of either
    decapitation or slow strangulation is
    likely.
    Kristina E. Beard, Comment, Five Under the
    Eighth: Methodology Review and the Cruel
    and Unusual Punishments Clause, 51 U. Miami
    L. Rev. 445, 464 (1997).
    Given that a professional execution, in
    at least a semi-controlled environment,
    leads to an agonizing death, it seems
    apparent that a depressed man with only an
    overhead pipe and a bedsheet would suffer
    a great deal. Dr. Kern, an ear, nose, and
    throat surgeon, reviewed the documentation
    for Mr. Johnson’s case and testified as to
    his findings. Dr. Kern explained that death
    from a self-hanging is slower than a
    judicial hanging. Like in Mr. Johnson’s
    case, the individual usually falls a short
    distance and uses a material that is
    looser on the neck than a rope. These
    circumstances combine to cause a slow
    suffocation. If a person succeeds in
    completely blocking his airway, that person
    may lose consciousness as quickly as in
    three minutes. However, Mr. Johnson
    "assuredly" could not achieve total airway
    blockage using the bedsheet. Tr.II at 140.
    While suffocating, Mr. Johnson experienced
    the phenomenon known as "air hunger" during
    which the body wants oxygen but cannot get
    it. Air hunger causes extreme anxiety and
    fear. Dr. Kern testified that it was very
    likely that Mr. Johnson was conscious
    longer than three minutes and may have
    suffered up to twenty.
    Drowning is also clearly a traumatic
    experience. When a person in the water
    begins to take water in, the automatic
    physiological reaction is that the muscle
    at the entrance of the windpipe contracts,
    preventing water from entering the lungs.
    See Am. Med. Ass’n, Encyclopedia of
    Medicine 375 (1989). However, this
    contraction impairs breathing; without
    access to oxygen, the brain begins to be
    affected within thirty seconds, and the
    individual quickly loses consciousness. See
    id.; see also Roy W. Rafter, The Anatomy
    of Drowning, at
    http://www.airsearchrescue.com/drowning.h
    tm. Depending on the physical status of
    the victim, death often occurs in two
    minutes or less.
    The differences between drowning and
    hanging are far too great to cabin the
    discretion of the trial court by making
    the court treat them as one and the same.
    The standard of review for damage awards
    is still an abuse of discretion.
    FOOTNOTES
    /1 Admittedly, these individuals are not experts.
    However, when even a lay person recognizes that
    an individual needs help, it does not reflect
    well on the experts who remain oblivious to the
    situation.
    /2 Although the defendants suggest that this scrat-
    ching may have been caused by a skin condition,
    they offer no evidence to support that conten-
    tion. Additionally, at least one inmate, Derrick
    Anderson, testified that Mr. Johnson told him
    that he scratched because he was nervous, not
    because of a skin problem.
    /3 MCC policy requires blood-stained linens to be
    laundered in a particular manner to guard against
    blood-born pathogens. That policy was never
    followed in this case.
    

Document Info

Docket Number: 00-2411

Judges: Per Curiam

Filed Date: 9/4/2001

Precedential Status: Precedential

Modified Date: 9/24/2015

Authorities (39)

Simmons v. University of Chicago Hospitals & Clinics , 247 Ill. App. 3d 177 ( 1993 )

Epping v. Commonwealth Edison Co. , 315 Ill. App. 3d 1069 ( 2000 )

barbara-stissi-individually-and-as-personal-representative-of-the-estate , 765 F.2d 370 ( 1985 )

Millman v. County of Butler , 244 Neb. 125 ( 1993 )

Shelton v. BOARD OF REGENTS OF U. OF NEB. , 211 Neb. 820 ( 1982 )

Paul Riemer v. Illinois Department of Transportation , 148 F.3d 800 ( 1998 )

Melanie Snyder v. Whittaker Corporation, Billie Fay Allen v.... , 839 F.2d 1085 ( 1988 )

john-a-aguilar-karen-m-aguilar-husband-and-wife-v-united-states-of , 920 F.2d 1475 ( 1990 )

Giebel v. Richards , 224 Wis. 2d 468 ( 1999 )

McMahon v. St. Croix Falls School District , 228 Wis. 2d 215 ( 1999 )

West v. Conrail , 107 S. Ct. 1538 ( 1987 )

Farmer v. Brennan , 114 S. Ct. 1970 ( 1994 )

City of Mangum v. Brownlee , 181 Okla. 515 ( 1938 )

Donna Reilly, Etc. v. United States , 863 F.2d 149 ( 1988 )

Steve Debiasio v. Illinois Central Railroad , 52 F.3d 678 ( 1995 )

Kristin Beul v. Asse International, Inc. , 233 F.3d 441 ( 2000 )

McIntosh v. Antonino , 71 F.3d 29 ( 1995 )

gwendolyn-c-henry-and-hilery-henry-jr-husband-and-wife-v-merck-and , 877 F.2d 1489 ( 1989 )

Scorza v. Martinez , 683 So. 2d 1115 ( 1996 )

Butera v. District of Columbia , 235 F.3d 637 ( 2001 )

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