Nguyen v. Massachusetts Institute of Technology , 479 Mass. 436 ( 2018 )

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SJC-12329
DZUNG DUY NGUYEN, administrator,1 vs. MASSACHUSETTS INSTITUTE
OF TECHNOLOGY & others.2
Middlesex. November 7, 2017. - May 7, 2018.
Present: Gants, C.J., Gaziano, Lowy, Cypher, & Kafker, JJ.
Wrongful Death. Negligence, Wrongful death, College. Damages,
Wrongful death, Conscious pain and suffering, Breach of
contract. Practice, Civil, Amendment of complaint.
Workers' Compensation Act, Exclusivity provision.
Civil action commenced in the Superior Court Department on
September 6, 2011.
The case was heard by Bruce R. Henry, J., on motions for
summary judgment.
The Supreme Judicial Court granted an application for
direct appellate review.
Jeffrey S. Beeler for the plaintiff.
Kevin P. Martin (Yvonne W. Chan also present) for the
defendants.
Alan D. Rose, B. Aidan Flanagan, & Antonio Moriello, for
Amherst College & others, amici curiae, submitted a brief.
1 Of the estate of Han Duy Nguyen.
2 Birger Wernerfelt, Drazen Prelec, and David W. Randall.
2
Jonathan A. Karon, Thomas R. Murphy, Mark F. Itzkowitz, &
Lisa DeBrosse Johnson, for Massachusetts Academy of Trial
Attorneys, amicus curiae, submitted a brief.
KAFKER, J. The plaintiff, Dzung Duy Nguyen, commenced a
wrongful death action against the defendants, Massachusetts
Institute of Technology (MIT), MIT Professors Birger Wernerfelt
and Drazen Prelec, and MIT assistant dean David W. Randall,
arising out of the suicide of his son, Han Duy Nguyen (Nguyen).
The defendants are alleged to have been negligent in not
preventing Nguyen's suicide. The motion judge allowed summary
judgment for MIT and the individual defendants, finding no duty
to prevent Nguyen's suicide. Although we conclude that, in
certain circumstances not present here, a special relationship
and a corresponding duty to take reasonable measures to prevent
suicide may be created between a university and its student, we
affirm the decision of the motion judge that the defendants are
entitled to judgment as a matter of law.3
Background. We summarize the facts in the record in the
light most favorable to the plaintiff. Godfrey v. Globe
3 We acknowledge the amicus brief filed by the Massachusetts
Academy of Trial Attorneys; and the amicus brief filed in
support of defendants by Amherst College, Bentley University,
Berklee College of Music, Boston College, Boston University,
Brandeis University, College of the Holy Cross, Emerson College,
Endicott College, Harvard University, Northeastern University,
Simmons College, Smith College, Stonehill College, Suffolk
University, Tufts University, Williams College, and Worcester
Polytechnic Institute.
3
Newspaper Co., 457 Mass. 113, 114 (2010). We reserve additional
facts for our discussion of the legal issues.
1. The parties. At the time of his death on June 2, 2009,
Nguyen was a twenty-five year old graduate student in the
marketing program at MIT's Sloan School of Management (Sloan)
and lived off-campus. Prelec was a Sloan faculty member and
served as Nguyen's graduate research advisor. Wernerfelt was a
Sloan faculty member and head of the Marketing Group Ph.D.
program whose responsibility included advising graduate students
concerning their coursework and research. Randall was an
assistant dean in MIT's student support services (student
support) office.
2. MIT support resources. In May, 2007, after his first
academic year at MIT and two years before his death, Nguyen
contacted Sloan's Ph.D. program coordinator, Sharon Cayley, for
assistance with test-taking problems. Nguyen explained to
Cayley that he was "failing all of my classes because I don't
know how to take [examinations (exams)]. I know the course
material, but it just won't happen for me on exams." Cayley
then referred Nguyen to an MIT student disability services
office coordinator, who described some of MIT's accommodations
for individuals with disabilities. Nguyen declined such
accommodations. In her notes from her meeting with Nguyen, the
coordinator wrote that Nguyen "does not want to connect with MIT
4
Medical. (I recommended that he do so.) Says it won't be
helpful; no reason to do so" (emphasis in original). After two
meetings with the coordinator, Nguyen reported to Cayley that
the meetings were of "absolutely no use . . . [the coordinator]
seemed to think that because I was referred to her, that meant
that I was disabled, and therefore had only disability
accommodations to offer me."
On June 25, 2007, Cayley referred Nguyen to MIT's mental
health and counselling service (MIT Mental Health) and informed
Wernerfelt that this referral was Cayley's "response to
[Nguyen's] expressed need for remedial study skills." On July
9, 2007, Nguyen met with Dr. Celene Barnes, a psychologist at
MIT Mental Health. On meeting Barnes, Nguyen stated that he did
not know why he "was referred here. My issues have nothing to
do with [mental health]." During the intake meeting, Nguyen
denied suicidal ideation. Barnes "provided [a] brief overview
of [information] on test anxiety and gave him handouts used in
the test anxiety workshop [and] [o]ffered to work with him on
this issue." Nguyen "declined, stating again that he did not
want to seek[] services at [MIT Mental Health] due to the stigma
associated with it."
On July 25, 2007, Nguyen had a second appointment with
Barnes. She conducted a general intake, which irritated Nguyen
because "he didn't know what other [mental health] issues had to
5
do with his test taking problem." During this meeting, Nguyen
disclosed to Barnes that he had had a long history of depression
with two prior suicide attempts during college but denied any
present suicidal ideation. Nguyen also disclosed that he had
been in treatment prior to coming to MIT and that he had resumed
treatment with a psychiatrist in the area. Although Nguyen had
hoped that his test anxiety issue would be resolved in one
appointment, he agreed to follow up with Barnes at the start of
the school year.
On July 29, 2007, Nguyen told Cayley that he found MIT
Mental Health to be "useless," that Barnes "proceeded to turn me
into a mental patient, and I was forced to discuss things that I
really didn't want to," and that he doubted that MIT Mental
Health was the "correct agency to solve my problem." Further,
Nguyen questioned why Wernerfelt had to be informed of the
referral to Barnes because Nguyen was "hoping to keep the circle
as small as possible, since I'm very ashamed and embarrassed
about [my test-taking problems]."
On August 9, 2007, Nguyen reported to Barnes that he was
receiving treatment from Dr. John J. Worthington, a psychiatrist
at Massachusetts General Hospital (MGH), not MIT Mental Health.
Barnes offered to consult about treatment planning, but Nguyen
declined. Subsequently, Nguyen informed Barnes that he had
"been able to make other arrangements for treatment, so there
6
will be no need to search any further, but I really appreciate
all of your effort thus far."
On September 6, 2007, Nguyen met with Randall, the
assistant dean in the student support office.4 Before meeting
with Randall, Nguyen had sent an electronic mail (e-mail)
message to another student support dean, inquiring whether the
student support office could help him with his problem, which
was that he had "difficulty with taking exams, to the extent
that [he was] failing classes" and asked if the student support
office offered "any kind of counseling service that teaches
study skills." In their first meeting, Randall reported that
Nguyen was "very committed to this not being seen as a 'problem'
and [was] looking for a quick fix." Toward the end of the
meeting, Nguyen acknowledged that he had a long history of
mental health issues and depression and that he was seeing a
psychiatrist, Dr. Worthington, off campus.
On September 24, 2007, Nguyen returned to see Randall.
Nguyen described a "long history of depression dating back to
high school," and treatment by "several . . . therapists during
college." He also "acknowledged two suicide attempts in the
4 At the time, Randall was a licensed clinical psychologist.
Both parties are in agreement, however, that Randall did not
have a clinician-patient relationship with Nguyen in his
nonclinical capacity as assistant dean in the Massachusetts
Institute of Technology (MIT) student support services office.
7
past and frequent suicidal thoughts." Nguyen, however, stated
that he "did not identify a specific plan [to commit suicide]
. . . and [was] not imminently suicidal." Although perceiving
that Nguyen was not an imminent threat, Randall "strongly
encouraged" Nguyen to visit MIT Mental Health. But after his
recent MIT Mental Health meeting with Barnes, Nguyen was
resistant and stated that his current psychiatrist was already
aware of his prior suicidal ideation and that Nguyen also had
plans to see another therapist, Dr. Stephen Bishop, in Rhode
Island.
By the end of the September 24 meeting, Nguyen gave Randall
permission to contact Worthington, Bishop, and Barnes. Later
that day, Randall left a voice message for Worthington.
Subsequently, Nguyen revoked Randall's permission to contact
Worthington and stated in an e-mail message that he would "like
to keep the fact of my depression separate from my academic
problems. I'd prefer that we not any further discuss the
depression, that my academic problems can be framed in terms of
a deficit in study skills instead. If you can offer any such
aid, I'd be happy to further employ your services." On
September 25, Randall acknowledged Nguyen's decision and replied
that he "would still like to meet with you and think that I can
be helpful." Randall also stated in the e-mail message that
Nguyen was permitted "to schedule another [appointment]."
8
Nguyen did not respond to Randall's e-mail message and did not
have any further meetings or contact with Randall after
September, 2007.
Worthington followed up with Randall on September 27, 2007.
Worthington was unable to share any information or confirm that
Nguyen was his patient, but said that he could listen to
Randall's concerns, especially regarding Nguyen's safety.
Randall informed Worthington that Nguyen appeared "agitated, a
little suspicious, and anxious, both at [the student support
office] and MIT [Mental Health]," and of Nguyen's "suicidal
thoughts and previous attempts." Worthington did not discuss
the case further, but agreed the information should be taken
seriously. On September 28, 2007, Randall told Barnes that he
had spoken with Worthington about Nguyen, and wrote, "Let's keep
in touch about this student." Barnes responded, "I agree, let's
definitely keep in touch about [Nguyen]." Nguyen did not return
to see Barnes or any other mental health provider at MIT Mental
Health.
3. Nguyen's mental health history. Although Nguyen
briefly sought out the student disability services office, MIT
Mental Health, and the student support office between May and
September, 2007, he extensively consulted with clinicians not
affiliated with MIT. Between July, 2006, when Nguyen moved to
Massachusetts, and May, 2009, Nguyen saw at least nine private
9
mental health professionals who collectively recorded over
ninety in-person visits during this period. There was no
indication from any of these mental health professionals that
Nguyen was at an imminent risk of committing suicide.
From July, 2006, two months before enrolling at MIT, to
November, 2008, Nguyen was treated by Worthington, a
psychiatrist at MGH. Over the course of their forty-three in-
person appointments, Worthington discerned nothing indicating
that Nguyen was at an imminent risk of suicide. Nguyen
requested electroconvulsive therapy to treat his depression, and
received six rounds of it at MGH in August and September, 2006.
Starting in September, 2006, Nguyen began therapy with a
social worker at MGH and was scheduled for sixteen sessions.
Nguyen disclosed to the social worker that he had occasional
suicidal thoughts, but no suicidal intent or plan. After their
twelfth visit, Nguyen canceled his remaining appointments
stating that his "time together [with the social worker had] not
resulted in an inch of progress."
Nguyen's next therapist was Bishop, whom he saw for several
months in Rhode Island beginning in October, 2007. Bishop
diagnosed Nguyen with dysthymic disorder, a chronic depressive
condition. Nguyen saw Bishop six times between October, 2007,
and March, 2008, but stopped seeing him because of the distance
and because Bishop did not accept his health insurance plan.
10
From April, 2008, to March, 2009, Nguyen sought treatment
from a doctor at a private practice group who specialized in
sleep disorders. This doctor did not think that Nguyen was at
risk of suicide during the time she was treating him. Starting
in August, 2009, Nguyen saw a psychologist affiliated with the
same private practice group. In February, 2009, Nguyen canceled
his future appointments with the psychologist because he
believed his "sleep patterns [were] beginning to converge on
nonpathology."
Next, in November, 2008, Nguyen met twice with another
doctor to complete a psychological test. During the interview,
Nguyen told that doctor that he was "not imminently suicidal."
That same month, Nguyen stopped seeing Worthington because
Nguyen believed him to be "too autocratic and didn't consider
[Nguyen's] input."5 Nguyen then began seeing yet another doctor
and continued to see him through May, 2009. At Nguyen's initial
appointment, that doctor noted that Nguyen "made two 'half-
assed' suicide attempts. He denies suicidal ideation." At each
appointment, the doctor and Nguyen discussed whether Nguyen had
"any self-destructive thoughts . . . [or felt like] giving up."
5 Nguyen had made a similar point in June, 2008, when he
sent an electronic mail (e-mail) message to Worthington stating,
"I need you to consider me as part of the team when it comes to
my own treatment. . . . After all I am a PhD student at one of
the world's top universities. Please give me a little credit
here."
11
Nguyen denied any such thoughts or feelings.
In March, 2009, Nguyen began seeing a different doctor,
with whom he had six visits. Nguyen told the doctor about his
two prior suicide attempts but denied any current suicidal
ideation. Throughout this time, the doctor did not believe that
Nguyen was at an imminent threat of self-harm.
Nguyen's last appointment with this doctor was on May 28,
2009, five days before Nguyen's death. The doctor noted that
Nguyen "did not say anything that sounded imminently suicidal or
hopeless, and we discussed more things that he would do toward
exploring thesis and career options, and we made a next
[appointment] for [June 18]."
4. Nguyen's academic challenges. At times during his
studies at Sloan, Nguyen struggled academically and performed
"well below average" in some of his courses. During Nguyen's
time at MIT, neither Wernerfelt nor Prelec was aware of Nguyen's
history of severe depression or prior suicide attempts.
Wernerfelt knew only that Nguyen had insomnia and test taking
anxiety, and that he was consulting off-campus mental health
professionals.
On May 9, 2008, Prelec was informed by one of his MIT
colleagues that Nguyen was reportedly "out of it" and
"despondent," potentially because Nguyen was "having trouble
sleeping as of late." On May 12, Prelec met with Nguyen and
12
reported to Wernerfelt that Nguyen is "sleep deprived . . . and
is taking something on prescription to help him sleep. He is
seeing a psychiatrist regularly, at Mass General (not MIT).
Same person he has been seeing since he got here." Wernerfelt
replied that Nguyen "has had some serious issues with exam
anxiety, so I worry about the general[] [exams]. Perhaps we can
give them in a less concentrated form . . . [t]hat way he can
get a good grade under his belt . . . I think that it would be
good to give him some confidence."6
On May 26, 2008, Wernerfelt was informed that Nguyen had
performed poorly in a course that an MIT colleague taught.
Nguyen had told that colleague that he had "medical problems
that have prevented him from focusing on classes . . . [and]
asked [the colleague] to consider his weakened health when he
[took] the final." Wernerfelt responded to his colleague that
Nguyen was "having serious problems. Some of his issues seem to
peak at exam time, but there is much more to it than that. He
has been seeing a psychiatrist at MGH (not MIT) as long as he
has been here. I thus have no official information, but I do
6 Wernerfelt testified that "general exams" were required
for all MIT Sloan School of Management Ph.D. students. Students
typically take these examinations at the end of their second
year, over a period of several days.
13
believe that he is at risk."7 Wernerfelt suggested that his
colleague be lenient and "grade him based on the problem sets"
rather than his final examination.
On June 2, 2008, Wernerfelt sent an e-mail message to seven
of Nguyen's professors, informing them that Prelec and he had
"decided to reduce the pressure on [Nguyen] by spreading out his
general[] [exams] over several weeks." On June 4, Wernerfelt,
"[i]n an attempt to reduce the pressure on [Nguyen] as much as
possible," further modified Nguyen's examination schedule
allowing Nguyen to take the examinations when he was ready.
In a June, 2008 self-evaluation form, Nguyen stated that
his academic performance was "[b]elow average, due to my medical
condition." Nguyen indicated that the "primary nature of this
illness [was] insomnia" and that he had "been seeing a team of
doctors at [MGH] and elsewhere who have been trying to help me."
Nguyen described how "horrendously bad" his medical condition
was, stating that "[t]here were days during which I was so
completely debilitated for the entire day that I was unable to
get out of bed at all, much less function properly" and that at
one point he "had to be hospitalized because I was so delirious
7 Wernerfelt testified that he meant "risk" to refer to
"some adverse reaction if [Nguyen] were to get a really low
grade" in Nguyen's economics course. Wernerfelt stated that a
low grade was "not a big deal" because if Nguyen got "a bad
grade . . . he [could] take a makeup exam or . . . take another
course instead" to satisfy the graduate school requirement.
14
and incoherent after not being able to sleep for over [seventy-
two] hours." Nguyen further stated that he "would not be
surprised if I have to be hospitalized again in the near
future." Nguyen also stated that he was on his ninth different
sleeping pill prescription and that he was still not functioning
well. Nguyen did not disclose any history of depression,
suicidal ideation, or his prior suicide attempts in his self-
evaluation. After receiving Nguyen's self-evaluation,
Wernerfelt offered to help Nguyen obtain a "leave from the
program . . . such that [he] could return to a good situation
once the [doctors] lick [his] sleeping problems."
On October 30, 2008, Nguyen sent an e-mail message to
Wernerfelt and requested an examination schedule that would take
place between January 12 and January 26, 2009, with his oral
examination during the week of January 26 through January 30,
2009.8 Prelec testified that Nguyen's performance "varied some,
but overall it was not a good performance."
After Nguyen had completed his general examinations, the
faculty in his department met in January, 2009, to discuss
Nguyen's performance and whether he had passed. Wernerfelt
advocated that "Nguyen should be passed and that the faculty
should counsel him to pursue a master's degree." Wernerfelt
8 Nguyen's general examinations originally had been
scheduled for the summer of 2008.
15
also stated that "they might end up with 'blood on their hands'"
if the faculty were to fail Nguyen.9 One of Wernerfelt's
colleagues testified that the phrase, "blood on our hands," was
repeated several times. After the faculty passed Nguyen,
Wernerfelt met with Nguyen to inform him that he had passed,
although he was required to take certain additional courses to
remain in the Ph.D. program. Further, Wernerfelt "laid out the
path to a [Master's degree] . . . [and] [s]aid that all members
of the faculty felt that he would be unhappy in a professorial
job." In March, 2009, Nguyen sent an e-mail message to Prelec,
telling him that "to be a professor" is what Nguyen "want[ed]
more than anything. . . . [and he was not] convinced that anyone
has really taken [his] health issues into consideration."
Nguyen remained insistent that he would "still do everything in
[his] power to ensure that [he] will finish the PhD."
Prelec met with Nguyen weekly during the spring of 2009 and
noticed that Nguyen "seemed better" and was having fewer sleep
problems. That semester, Nguyen served as a teaching assistant
and, at the end of the semester, was offered another teaching
assistant position for the fall of 2009, which he accepted. In
9 In contrast to failing a course, failing general
examinations could lead to dismissal from the graduate program.
Wernerfelt testified that if Nguyen were to fail his general
examinations, there was a "very small chance that . . .
something bad could happen . . . such as [Nguyen] hurting
himself or others."
16
May, 2009, Prelec recommended Nguyen for a summer research
assistant position in an MIT laboratory. On May 27, 2009,
Nguyen sent an e-mail message to the project investigator that
he was "very excited about [the] project . . . [and] would be
eager to begin very soon." Nguyen also requested an update
about funding logistics, as he was under the impression that the
MIT laboratory's "coffers were bottomless." Prelec was copied
on this message and forwarded it to Wernerfelt, stating that he
was "mildly nervous" about recommending Nguyen because "[w]ith
this talk of bottomless coffers . . . [Nguyen] will rapidly
offend . . . folks." In response, Wernerfelt suggested that
"someone should talk to [Nguyen] about sending more respectful
e-mails" and that "[p]erhaps we should offer to prescreen his e-
mails . . . after two or three [Nguyen] might get the idea."
Wernerfelt offered to take the lead on speaking with Nguyen
about e-mail etiquette.
5. Nguyen's suicide. At approximately 7 A.M. on June 2,
2009, Nguyen sent the project investigator an e-mail message, on
which he blind-copied Prelec:
"I forgot to mention that this upcoming Monday I have
a doctor's appointment that I had scheduled a long time
ago, so I won't be able to come into the office until about
11:30 that day. I hope that that won't be a problem.
"If we can quickly follow up on the conversation that
we had yesterday, if you'll forgive me, I'd like to be
honest with you about something. [Prelec] recommended me
for this position . . . [a]nd I'm not an undergrad
17
anymore; I'm a grad[uate] student now. For those reasons,
it was disturbing, as well as a little insulting, to me
that yesterday you took pains to express your expectations
of me in a manner that presumed that I would give you
anything less than this project deserved, that you would
'give me a signal' if you didn't think that my contribution
amounted to something deserving of authorship credit, that
'there would be a problem' if it turned out that '[you]
could do [the work] faster [your]self,' that you threatened
me that you could tell by visual inspection whether my work
was up to par. I like to feel like I've earned the right
not to have my effectiveness or my integrity questioned
anymore, and to hear you do that yesterday was kind of
hurtful. I'm not sure that if you continue to do this that
I'll be able to work as effectively as I'd like to be able
to. Although I keep asking about it, I'm not just doing
this for the money. I want to learn something and make a
meaningful contribution . . . . Would it be possible that
we could move forward with an understanding of good faith
on my part?"
After receiving Nguyen's e-mail message, Prelec and the project
investigator spoke about it. The project investigator told
Prelec that Nguyen had taken his comments out of context and
that Nguyen misinterpreted his intentions and the tone of the
meeting.
Prelec forwarded the e-mail message to Wernerfelt, asking
if Wernerfelt could "talk to [Nguyen] as a somewhat neutral
party . . . [Nguyen] is misreading things. Even so, the tone of
reply is totally out of line." Wernerfelt responded, "I am so
sorry. I will talk to [Nguyen] and let you know what he says."
At approximately 9 A.M. on June 2, Nguyen arrived at a
laboratory in a building on MIT's campus. The laboratory
coordinator noted that Nguyen's demeanor appeared "pretty
18
normal" and that Nguyen was preparing for a research project.
After a number of missed calls between Nguyen and Wernerfelt, at
10:51 A.M., Nguyen reached Wernerfelt by telephone. Nguyen left
the laboratory to take the call.10 After the telephone call
ended at approximately 10:59 A.M., Nguyen went to the roof of
the building and jumped off the building to his death. A first
responder administered first aid to Nguyen "a few seconds" after
he landed and did not identify any signs of breathing, eye
movement, pulse, or consciousness. It was determined that the
immediate cause of Nguyen's death was "blunt trauma with head,
skull, torso and extremity injuries" and that it occurred within
"seconds."
Meanwhile, after Wernerfelt finished speaking with Nguyen,
at 11:04 A.M., Wernerfelt sent an e-mail message to Prelec:
"I read [Nguyen] the riot act
"Explained what is wrong about the e-mail
"Told him that you or I would look over future e-mails he
10Wernerfelt testified that he contacted Nguyen because he
had been forwarded Nguyen's e-mail message to the project
investigator and that he wanted to help with Nguyen's "social
skills." Wernerfelt testified that he "went through point for
point" giving "advice and explanations" on what was improper
with Nguyen's e-mail. Wernerfelt recommended that Nguyen, in
the future, let him or Prelec review Nguyen's e-mail drafts.
Wernerfelt reiterated that Nguyen "would be happier outside the
academe" and "should think about getting a [M]aster's degree and
pursuing a nonacademic job." At the conclusion of the telephone
call, Wernerfelt told Nguyen that "some patching up would have
to be done after this e-mail, and [Wernerfelt] thought [Nguyen]
should . . . contact [Prelec] and the two of them could together
figure out what the next steps would be."
19
send[s] . . .
"I said that we know that he is not out to offend anyone
but that he seems poor at navigating the academe
"Said that this is an example of why we all recommended
that he take a [Master's Degree] and go out to get a job
"I talked about some papers he could turn into [a Master's]
thesis and volunteered to supervise it
"Said that he made you look bad vs [the laboratory] and
that some patching up was necessary
"He will call you about what to do"
Later in the afternoon on June 2, 2009, one of Wernerfelt's
colleagues sent an e-mail message to Wernerfelt that "I know you
were worried about suicide, but you can feel positive that we
tried very hard to help [Nguyen] (and especially you did so much
to help him)."11
In 2011, the plaintiff commenced an action in Superior
Court, alleging that the defendants' negligence caused Nguyen's
death. In March, 2016, the defendants moved for summary
judgment and the plaintiff filed a cross motion for summary
judgment. In October, 2016, the defendants' motion for summary
judgment was allowed and the plaintiff's cross motion for
summary judgment was denied. The plaintiff appealed from the
denial of his motion, and we granted his motion for direct
appellate review.
Discussion. The plaintiff contends that the defendants
owed Nguyen a duty of reasonable care and committed a breach of
11The colleague testified that Wernerfelt "didn't actually
say suicide. He said serious consequences, which I interpreted
. . . as a risk for suicide."
20
this duty. Additionally, the plaintiff argues that the record
supports claims for punitive damages, conscious pain and
suffering, and breach of contract. The plaintiff also asserts
that the Superior Court judge improperly denied the plaintiff's
motion to amend the complaint to assert claims against former
MIT chancellor Phillip Clay. Lastly, the plaintiff contends
that summary judgment should be entered in his favor that Nguyen
was not an MIT employee at the time of his death for workers'
compensation purposes.
1. Standard of review. Where the parties have cross-moved
for summary judgment, we review a grant of summary judgment de
novo to determine whether, viewing the evidence in the light
most favorable to the unsuccessful opposing party and drawing
all permissible inferences and resolving any evidentiary
conflicts in that party's favor, the successful opposing party
is entitled to judgment as a matter of law. Epstein v. Board of
Appeal of Boston, 77 Mass. App. Ct. 752, 756 (2010). See Cabot
Corp. v. AVX Corp., 448 Mass. 629, 636–637 (2007), citing Augat,
Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991).
2. Negligence claim. a. General negligence principles.
"To prevail on a negligence claim, a plaintiff must prove that
the defendant owed the plaintiff a duty of reasonable care, that
the defendant [committed a breach of] this duty, that damage
resulted, and that there was a causal relation between the
21
breach of the duty and the damage." Jupin v. Kask, 447 Mass.
141, 146 (2006). Generally, there is no duty to prevent another
from committing suicide. Under our case law, "we do not owe
others a duty to take action to rescue or protect them from
conditions we have not created." Cremins v. Clancy, 415 Mass.
289, 296 (1993) (O'Connor, J., concurring). "[T]he law has
persistently refused to impose on a stranger the moral
obligation of common humanity to go to the aid of another human
being who is in danger, even if the other is in danger of losing
his life." W.L. Prosser & W.P. Keeton, Torts § 56, at 375 (5th
ed. 1984).
b. Special relationships and the duty to prevent suicide.
We have, however, recognized that special relationships may
arise in certain circumstances imposing affirmative duties of
reasonable care in regard to the duty to rescue, including the
duty to prevent suicide. The classic case is the custodial
relationship, particularly jails or hospitals.12 In Slaven v.
12In noncustodial cases, a defendant is also "liable for
another's death by suicide when, as a consequence of a physical
impact, death results from an 'uncontrollable impulse, or is
accomplished in delirium or frenzy.'" Slaven v. Salem, 386
Mass. 885, 886–887 (1982), quoting Daniels v. New York, N.H. &
H.R.R., 183 Mass. 393, 399-400 (1903). The plaintiff asserts
that the second scenario applies, that Wernerfelt triggered
Nguyen's uncontrollable suicidal impulse by the "riot act"
telephone call. In this case, the "uncontrollable impulse"
scenario does not apply, as there has been no prior physical
22
Salem, 386 Mass 885, 888 (1982), we addressed the duty and
accompanying responsibilities of a jailor for the suicide of a
prisoner in his custody.
"One who is required by law to take or voluntarily
takes the custody of another under circumstances such as to
deprive the other of his normal opportunities for
protection is under a duty (1) to protect them against
unreasonable risk of physical harm, and (2) to give them
first aid after it knows or has reason to know that they
are ill or injured, and to care for them until they can be
cared for by others."
Id. at 887, citing Restatement (Second) of Torts § 314A (1965).
We further explained that "[t]he comments to § 314A state that a
'defendant is not liable where he neither knows nor should know
of the unreasonable risk, or of the illness or injury.'"
Slaven, supra, citing Restatement (Second) of Torts, supra at §
314A comment e. Finally, we noted that in cases in other
jurisdictions "that have addressed the issue of the liability of
a jailor for the suicide of one in his custody, most have
required that there be evidence that the defendant knew, or had
reason to know, of the plaintiff's suicidal tendency." Slaven,
supra at 888.
We likewise conclude that there are other special
relationships, outside the custodial context, that may impose
affirmative, albeit limited, duties in regard to suicide
injury causing the uncontrollable impulse. Slaven, supra at
887.
23
prevention. We therefore turn to the scope of the university-
student relationship, and the duties, if any, it imposes
regarding suicide prevention.13
c. The modern university-student relationship. We begin
with the Restatement (Third) of Torts, which states that "[a]n
actor in a special relationship with another owes the other a
duty of reasonable care with regard to risks that arise within
the scope of the relationship." Restatement (Third) of Torts:
Liability for Physical and Emotional Harm § 40(a) (2012).
Included in the list of special relationships giving rise to
such duty is "a school with its students." Id. at § 40(b)(5).
This, of course, is the beginning and not the end of the
analysis. There is a wide range of schools -- from elementary
to graduate school -- and great differences in the scopes of
student-school relationships. Additionally, the Restatement
(Third) of Tort's formulation of special relationship is not
focused on the specific question of student suicide.
The particularities of the university-student relationship
are of paramount importance in defining any duty. Universities
are clearly not bystanders or strangers in regards to their
students. See Mullins v. Pine Manor College, 389 Mass. 47, 51-
13Our use of the term "university" encompasses other
institutions of higher education, including but not limited to
colleges and universities.
24
52 (1983). The primary mission of universities is academic in
nature.14 Universities also sponsor and have special
relationships with their students regarding athletics and other
potentially dangerous activities. See, e.g., Kleinknecht v.
Gettysburg College, 989 F.2d 1360, 1370 (3d Cir. 1993) (duty of
care to lacrosse player during practice); Davidson v. University
of N. Carolina at Chapel Hill, 142 N.C. App. 544, 555-556 (2001)
(duty of care to cheerleader during practice). See also Massie,
Suicide on Campus: The Appropriate Legal Responsibility of
College Personnel, 91 Marq. L. Rev. 625, 641 (2008) (Suicide on
Campus). Cf. Kavanagh v. Trustees of Boston Univ., 440 Mass.
195, 202 (2003) (special relationship does not extend to
athletes from other schools). They are also property owners and
landlords responsible for their students' physical safety on
campus. See Mullins, 389 Mass. at 51-52; Massie, Suicide on
Campus, supra at 642. Furthermore, university involvement
extends widely into other aspects of student life. See Dall,
Determining Duty in Collegiate Tort Litigation: Shifting
Paradigms of the College-Student Relationship, 29 J.C. & U.L.
485, 519 (2003) (universities "do not conceive of their
14For example, "[t]he mission of MIT is to advance
knowledge and educate students in science, technology, and other
areas of scholarship that will best serve the nation and the
world in the 21st century]." http://web.mit.edu/facts
/mission.html [https://perma.cc/KF4R-PQ3W].
25
educational role narrowly . . . and foster many aspects of
student life and community involvement such as residential life,
multicultural programs, student organizations, student
government, student media, community service, internships and
externships, technology, health and fitness, and spirituality").
Accord Regents of the Univ. of Cal. vs. Superior Court of Los
Angeles, Supreme Court of California, No. S230658, slip op. at
27 (Mar. 22, 2018) (Regents) ("Along with educational services,
colleges provide students social, athletic, and cultural
opportunities. Regardless of the campus layout, colleges provide
a discrete community for their students.").
But universities are not responsible for monitoring and
controlling all aspects of their students' lives. "There is
universal recognition that the age of in loco parentis has
passed, and that the duty, if any is not one of a general duty
of care to all students in all aspects of their collegiate
life." Massie, Suicide on Campus, 91 Marq. L. Rev. at 640. See
Mullins, 389 Mass. at 52 (describing major "changes in college
life," and "the general decline of the theory that a college
stands in loco parentis to its students"); Schieszler v. Ferrum
College, 236 F. Supp. 2d 602, 610 (W.D. Va. 2002) ("colleges are
not insurers of the safety of their students"). See also
Bradshaw v. Rawlings, 612 F.2d 135, 139 (3d Cir. 1979)
(describing end of loco parentis relationship "between college
26
and student that imposed a duty on the college to exercise
control over student conduct and, reciprocally, gave the
students certain rights of protection by the college").
University students are young adults, not young children.
Indeed, graduate students are adults in all respects under the
law. Universities recognize their students' adult status, their
desire for independence, and their need to exercise their own
judgment. Consequently the modern university-student
relationship is respectful of student autonomy and privacy. See
Bradshaw, 612 F.2d at 138 ("Trustees, administrators, and
faculties have been required to yield to the expanding rights
and privileges of their students"); Furek v. University of Del.,
594 A.2d 506, 516-517 (Del. 1991) (describing "realities of
modern college life where students are regarded as adults in
almost every phase of community life" [quotations and citation
omitted]). This includes students' personal mental health
decisions. Indeed, the privacy of student mental health records
are generally protected, absent the student's consent or an
emergency where disclosure is necessary to protect the health or
safety of the student or other persons. See Family Educational
Right and Privacy Act of 1974, 20 U.S.C. § 1232g (2012). See
also Health Insurance Portability and Accountability Act of
1996, 42 U.S.C. § 1320d-6 (2012) (imposing limitations on rights
of nonclinicians in obtaining or disclosing individually
27
identifiable health information); Massie, Suicide on Campus, 91
Marq. L. Rev. at 648.15
In deciding whether a special relationship and accompanying
duty exists between a university and a student in regard to
suicide prevention, and whether a breach of such a duty has
occurred, we must therefore take into account a complex mix of
competing considerations. Students are adults but often young
and vulnerable; their right to privacy and their desire for
independence may conflict with their immaturity and need for
protection. As for the universities, their primary mission is
to educate and they no longer are acting in loco parentis, but
they still have a wide-ranging involvement in the lives of their
students. See, e.g. Mullins, 389 Mass. at 52; Bradshaw, 612
F.2d at 138. See also Regents, slip op. at 17.
d. A university's duty regarding suicide prevention. In
analyzing whether a duty to prevent suicide falls within the
scope of the complex relationship that universities have with
their students, we consider a number of factors used to
delineate duties in tort law. Irwin v. Ware, 392 Mass. 745, 756
15Universities must also be attentive to the requirements
of the Federal Rehabilitation Act of 1973, 29 U.S.C. § 794(a)
(2012), which states, "No otherwise qualified individual with a
disability in the United States . . . shall, solely by reason of
her or his disability, be excluded from the participation in, be
denied the benefits of, or be subjected to discrimination under
any program or activity receiving Federal financial assistance."
28
(1984). See Massie, Suicide on Campus, 91 Marq. L. Rev. at 639.
"Foremost among these is whether a defendant reasonably could
foresee that he [or she] would be expected to take affirmative
action to protect the plaintiff and could anticipate harm to the
plaintiff from the failure to do so." Irwin, supra. A related
factor is "reasonable reliance by the plaintiff [on the
defendant], impeding other persons who might seek to render
aid." Id. Other factors that have been considered relevant to
special relationships and the creation of a duty in the
university context are the "degree of certainty of harm to the
plaintiff; burden upon the defendant to take reasonable steps to
prevent the injury; some kind of mutual dependence of plaintiff
and defendant upon each other, frequently . . . involving
financial benefit to the defendant arising from the
relationship; moral blameworthiness of defendant's conduct in
failing to act; and social policy considerations involved in
placing the economic burden of the loss on the defendant."
Massie, Suicide on Campus, supra. See Mullins, 389 Mass. at 51-
53. See also Lake, Still Waiting: The Slow Evolution of the
Law in Light of the Ongoing Student Suicide Crisis, 34 J.C. &
U.L. 253, 257-277 (2008) (Still Waiting) (catalog of key cases
and factors used by courts to determine duty); Regents, slip op.
at 18 ("Students are comparatively vulnerable and dependent on
their colleges for a safe environment. Colleges have a superior
29
ability to provide that safety with respect to activities they
sponsor or facilities they control").
With these considerations in mind, we conclude that a
university has a special relationship with a student and a
corresponding duty to take reasonable measures to prevent his or
her suicide in the following circumstances. Where a university
has actual knowledge of a student's suicide attempt that
occurred while enrolled at the university or recently before
matriculation, or of a student's stated plans or intentions to
commit suicide,16 the university has a duty to take reasonable
16The Columbia Lighthouse Project, under the auspices of
Columbia University, created the Columbia-Suicide Severity
Rating Scale(C-SSRS), a suicide risk assessment tool that
provides useful guidance. See Columbia-Suicide Severity Rating
Scale. http://cssrs.columbia.edu/the-columbia-scale-c-
ssrs/about-the-scale/ [https://perma.cc/TR7Y-S8JB]. More
specifically, C-SSRS category four or five behavior is
informative of what constitutes a student's stated plans or
intentions to commit suicide:
"4. Active Suicidal Ideation with Some Intent to Act,
without Specific Plan -- Active suicidal thoughts of
killing oneself and subject reports having some intent to
act on such thoughts, as opposed to 'I have the thoughts
but I definitely will not do anything about them.'
"5. Active Suicidal Ideation with Specific Plan and Intent
-- Thoughts of killing oneself with details of plan fully
or partially worked out and subject has some intent to
carry it out."
(Emphasis in original.) See Posner, Brent, Lucas, Gould,
Stanley, Brown, Fisher, Zelazny, Burke, Oquendo, & Mann,
Columbia-Suicide Severity Rating Scale (C-SSRS), Lifetime
Recent, Version 1/14/09 m9/12/17 (2008).
30
measures under the circumstances to protect the student from
self-harm. See Mullins, 389 Mass. at 52 ("Parents, students,
and the general community still have a reasonable expectation,
fostered in part by colleges themselves, that reasonable care
will be exercised to protect . . . students from foreseeable
harm"); Schieszler, 236 F. Supp. 2d at 608-609 ("relationship
between a college or university and its students can give rise
to a duty to protect students from harms of which the school has
knowledge," including risk of suicide); Restatement (Third) of
Torts, § 40(b)(5); Massie, Suicide on Campus, 91 Marq. L. Rev.
at 631 ("where college or university personnel are aware that a
student has made serious suicidal threats or attempts, they have
a duty to take reasonable steps to protect the student's
safety"). See also Pavela, Questions and Answers on College
Student Suicide: A Law and Policy Perspective 8-9 (2006)
("[I]nstitutions of higher education face heightened risk of
liability for suicide when they ignore or mishandle known
suicide threats or attempts. . . . The main obstacle to better
suicide prevention on campus is underreaction, especially the
failure to provide [perhaps even require] prompt professional
evaluation and treatment for any student who threatens or
attempts suicide" [emphasis in original]). We have sought to
define here the circumstances creating the special relationship
and the duty realistically recognizing the scope of the suicide
31
problem on university campuses, the capacities of nonclinicians,
and the nature of the modern university-student relationship.17
17It is estimated that 1,100 university students die by
suicide ever year. See Jed Foundation's Framework for
Developing Institutional Protocols For the Acutely Distressed or
Suicidal College Student 2 (2006), available at
https://www.jedfoundation.org/wp-content/uploads/2016/07
/framework-developing-institutional-protocols-acutely-
distressed-suicidal-college-student-jed-guide_NEW.pdf
[https://perma.cc/8MLG-2T3U] ("Jed Framework"). "According to
the Center for Disease Control and Prevention (CDC), suicide is
the 'second leading cause of death among [twenty-five to thirty-
four] year olds and the third leading cause of death among
[fifteen to twenty-four] year olds.' Thus, suicide prevention
is not simply a focus for traditional college- and university-
aged populations, but must also be a focus for graduate and
professional schools. The [twenty-five to thirty-four] year-old
demographic factors prominently in most graduate and
professional school programs and applies to the many college and
university students who extend their education" (footnote
omitted). Lake, Still Waiting: The Slow Evolution of the Law
in Light of the Ongoing Student Suicide Crisis, 34 J.C. & U.L.
253, 254–255 (2008). See Center for Disease Control, National
Center for Injury Prevention and Control, 10 Leading Causes of
Death by Age Group, United States -- 2015, https://www.cdc.gov
/injury/wisqars/pdf/leading_causes_of_death_by_age_group_2015-
a.pdf [https://perma.cc/A8TN-N2HQ] (from most recent statistics
available from CDC, in 2015, suicide was second leading cause of
death among both fifteen to twenty-four and twenty-five to
thirty-four year olds).
The number of students with suicidal thoughts is even more
alarming. According to an Internet-based survey of 26,000
undergraduate and graduate students administered by the National
Research Consortium of Counseling Centers in Higher Education,
six per cent of undergraduate and four per cent of graduate
students reported seriously considering suicide within the past
twelve months. See Drum, Brownson, Denmark, & Smith, New Data
on the Nature of Suicidal Crises in College Students: Shifting
the Paradigm, 40 Prof. Psychol.: Res. & Prac. 213, 214-216
(2009). Similarly, in the American College Health Association's
National College Health Assessment, which surveyed over 63,000
students at ninety-two colleges and universities in 2017, 10.3
32
It is important to understand the limited circumstances
creating the duty. It is definitely not a generalized duty to
prevent suicide. Nonclinicians are also not expected to discern
suicidal tendencies where the student has not stated his or her
plans or intentions to commit suicide. Even a student's
generalized statements about suicidal thoughts or ideation are
not enough, given their prevalence in the university community.
The duty is not triggered merely by a university's knowledge of
a student's suicidal ideation without any stated plans or
intentions to act on such thoughts.
As previously explained, this duty hinges on
foreseeability. See Irwin, 392 Mass. at 756; Mullins, 389 Mass.
at 52. See also Massie, Suicide on Campus, 91 Marq. L. Rev. at
639. Where a student has attempted suicide while enrolled at
the university or recently before matriculation, or has stated
plans or intentions to commit suicide, suicide is sufficiently
foreseeable as the law has defined the term, even for university
nonclinicians without medical training. Reliance of the student
per cent of students reported that they had "seriously
considered" suicide within the previous twelve months, and 1.5
per cent of students had attempted to commit suicide within the
previous twelve months. See American College Health Association
National College Health Assessment (2017), at 2, 14,
http://www.acha-ncha.org/docs/NCHA-II_SPRING_2017_
REFERENCE_GROUP_EXECUTIVE_SUMMARY.pdf [https://perma.cc/F3NN-
U9XD].
33
on the university for assistance, at least for students living
in dormitories or away from their parents or guardians, is also
foreseeable. Universities are in the best, if not the only,
position to assist. See Mullins, supra. They have also
"fostered" expectations, at least for their residential
students, that reasonable care will be exercised to protect them
from harm. Id. at 52, 54. See Irwin, supra.The probability of the harm must of course be considered
along with its gravity including the death of the student. See
Schieszler, 236 F. Supp. 2d at 609 ("there was an imminent
probability that [the decedent] would try to hurt himself");
Lake, Still Waiting, 34 J.C. & U.L. at 284 & n.204 (referencing
in article on risk of student suicide and violence Justice
Learned Hand's United States v. Carroll Towing Co., 159 F.2d
169, 173 [2d Cir. 1947], formulation that "if the probability be
called P; the injury, L; and the burden, B; liability depends
upon whether B is less than L multiplied by P: i.e., whether B
[is] less than PL"); Eisel v. Board of Educ. of Montgomery
County, 324 Md. 376, 386 (1991) (discussing magnitude of harm
and statistical possibility of risk of suicide). Thus, where a
student has attempted to commit suicide while enrolled at the
university or recently before matriculation or stated plans or
intentions to commit suicide, that probability is sufficient to
justify imposition of a duty on the university. See Eisel,
34
supra. The burden on the university is not insubstantial, but
so is the financial benefit received from student tuition. See
generally Mullins, 389 Mass. at 53 (relating tuition to duty to
provide adequate protection); Regents, slip op. at 13. Moral
blameworthiness on the part of a university in failing to act to
intervene to save a young person's life, when it was within the
university's knowledge and power to do so, is understood and
accepted by our society. See Eisel, supra at 391 ("if
classmates of [a middle school decedent] found her lying on the
floor of a lavatory, bleeding from slashed wrists, and those
students told one or more teachers of the emergency, society
would be outraged if the teachers did nothing and [the decedent]
bled to death"); Ames, Law and Morals, 22 Harv. L. Rev. 97, 112-
113 (1908) ("We should all be better satisfied if the man who
refuses to throw a rope to a drowning man or to save a helpless
child on the railroad track could be punished and be made to
compensate the widow of the man drowned and the wounded child").
Reasonable measures by the university to satisfy a
triggered duty will include initiating its suicide prevention
protocol if the university has developed such a protocol.18 In
18One resource that provides universities with guidance for
drafting is Jed Foundation's Framework for Developing
Institutional Protocols For the Acutely Distressed or Suicidal
College Student. See Jed Framework, supra at 2-3, 10-16.
35
the absence of such a protocol, reasonable measures will require
the university employee who learns of the student's suicide
attempt or stated plans or intentions to commit suicide to
contact the appropriate officials at the university empowered to
assist the student in obtaining clinical care from medical
professionals or, if the student refuses such care, to notify
the student's emergency contact.19 In emergency situations,
reasonable measures obviously would include contacting police,
fire, or emergency medical personnel. By taking the reasonable
measures under the circumstances presented, a university
satisfies its duty.
We stress that the duty here, at least for nonclinicians,
is limited.20 It is created only by actual knowledge of a
19We recognize that for college and university students the
emergency contact will often be the student's parents. But it
might not always be a parent or guardian, such as where the
student is married or where the student has informed the
University that the suicide attempt or stated plans or
intentions to commit suicide derive in part from a toxic home
environment (including parental pressures or abuse inflicted by
a parent). See Susan R. Furr, Westefeld, McConnell, & Jenkins,
Suicide and Depression Among College Students: A Decade Later,
32 Prof. Psychol.: Res. & Prac. 97, 98 (2001) (survey of 1,455
college and university students demonstrated that twenty per
cent of students who identified themselves as having suicidal
thoughts considered "parental problems" to be contributor to
their suicidal ideation and behavior).
20For university-employed medical professionals, the duty
and standards of care are those established by the profession
itself. See Stepakoff v. Kantar, 393 Mass. 836, 841 (1985)
("plaintiff has not directed our attention to any case in which
36
student's suicide attempt that occurred while enrolled at the
university or recently before matriculation, or of a student's
stated plans or intentions to commit suicide. It also is
limited to initiating the university's suicide prevention
protocol, and if the school has no such protocol, arranging for
clinical care by trained medical professionals or, if such care
is refused, alerting the student's emergency contact. Finally,
the duty is time-bound. Medical professionals may, for example,
conclude that the student is no longer a suicide risk and no
further care or counselling is required.
This limited duty takes a number of the complex and
competing considerations discussed above into account. First,
it respects the privacy and autonomy of adult students in most
circumstances, relying in all but emergency situations on the
student's own capacity and desire to seek professional help to
a court has bifurcated the duty owed by a psychiatrist to a
suicidal patient by declaring that, when diagnosing a patient,
the psychiatrist must exercise the care and skill customarily
exercised by an average qualified psychiatrist, while, after
diagnosing a patient as suicidal, the psychiatrist's duty to
take preventive measures becomes one of 'reasonableness.' We
are unwilling to disturb our longstanding rule that a physician,
practicing a specialty, owes to his or her patient a duty to
comply in all respects with the standard set by the average
physician practicing that specialty"). See also McNamara v.
Honeyman, 406 Mass 43, 49 (1989), citing Stepakoff, supra at 840("psychiatrist must exercise the same degree of skill and care
as is exercised by the average qualified practitioner in that
specialty, taking into account the advances in that profession
and the resources available to the physician").
37
address his or her mental health issues. Second, it recognizes
that nonclinicians cannot be expected to probe or discern
suicidal intentions that are not expressly evident. It also
acknowledges the scope of the suicide risk on campus and seeks
to impose realistic duties and responsibilities on the
universities, allowing them to respond with their own suicide
prevention protocols if such protocols have been developed.
Finally, this limited duty is consistent with the modern
university relationship with its students, which is no longer in
loco parentis but rather provides for the students' independence
and self-determination.
e. Whether a duty was created in this case and, if so,
whether a breach of that duty occurred. For reasons that will
be explained in detail below, we conclude that there was no duty
created in the instant case, and if there arguably was such a
duty two years before Nguyen's death, the defendants did not
commit a breach of it as a matter of law. In sum, Nguyen never
communicated by words or actions to any MIT employee that he had
stated plans or intentions to commit suicide, and any prior
suicide attempts occurred well over a year before matriculation.
He also was a twenty-five year old adult graduate student living
off campus, not a young student living in a campus dormitory
under daily observation. Nguyen repeatedly made clear that he
wanted to keep his mental health issues separate from his
38
academic performance problems and that he was seeking
professional help from psychiatrists and psychologists outside
the MIT Mental Health system.
i. The relationship with Dean Randall in 2007. In the
instant case, the question whether Randall, and therefore MIT,
had a special relationship with Nguyen to take reasonable
measures to prevent suicide in 2007 requires consideration of
Randall's knowledge of Nguyen's prior suicide attempts and
Nguyen's statements about present suicidal thoughts. First,
Nguyen's prior suicide attempts in December, 2002, and April,
2005, were as an undergraduate student at a different university
and preceded his September, 2006, enrollment as an MIT graduate
student. Additionally, although Nguyen had frequent suicidal
thoughts, which, in the light most favorable to the plaintiff,
can be read as present not past suicidal thoughts, Nguyen denied
suicidal ideation in 2007. Thus, Randall had no actual
knowledge of Nguyen having attempted suicide while enrolled at
or recently before matriculating to MIT, or whether Nguyen had
stated plans or intentions to commit suicide. Consequently,
Randall had no special relationship with Nguyen and thus no duty
to take reasonable measures to prevent Nguyen's suicide two
years before his death. Nonetheless, Randall properly
encouraged Nguyen to seek professional help at MIT, which
Nguyen, as was his right, refused. Nguyen also informed Randall
39
that he was seeking professional help elsewhere and Randall
sought permission to communicate with that psychiatrist, which
Nguyen allowed and then promptly revoked.
Finally, Randall invited further conversations with Nguyen,
which he declined. That being said, Randall left Nguyen in the
care of competent outside professionals as Nguyen demanded. In
these circumstances, as a matter of law, a twenty-five year old
graduate student's rights to privacy, autonomy, and self-
determination were properly respected.
ii. The relationship with Professors Wernerfelt and
Prelec. In contrast to Randall's circumstances, no such special
relationship was even arguably created between Nguyen and the
defendants Wernerfelt and Prelec. There was no evidence that
Wernerfelt and Prelec had actual knowledge of Nguyen's plans or
intentions to commit suicide. Both were academics; neither was
a trained clinician. Nguyen's communications to them about his
mental health problems related to insomnia and test-taking, not
to suicidal thoughts. There was also no evidence that
Wernerfelt or Prelec were informed by MIT Mental Health, the
student support office, or Randall about Nguyen's two suicide
attempts in 2002 and 2005. Even if Wernerfelt or Prelec had
such knowledge, the prior attempts were not close in time to
Nguyen's enrollment at MIT. Given Nguyen's express request that
his academic issues be kept separate from his mental health
40
issues and his assurances that he was being treated elsewhere,
there also was no duty to communicate this information to either
Wernerfelt or Prelec. Finally, even though Wernerfelt commented
about possible "blood on their hands," it was stated
metaphorically in the entirely different context of persuading
his colleagues to allow Nguyen to pass his examinations. We
note that Wernerfelt's expressed anxieties at the time of the
general examinations that Nguyen might harm himself were not
based on express statements or actions by Nguyen or information
from trained clinicians and were more than five months before
the time of the suicide. As none of the medical professionals
treating Nguyen considered him "imminently suicidal," this was
certainly not something Wernerfelt could have intuited on his
own.21 Because the circumstances at hand did not trigger a
21Dr. Worthington, who treated Nguyen over the course of
forty-three appointments over more than two years, testified
that he "never thought [Nguyen] was at that imminent risk [of
suicide] that he had to be admitted." Dr. Jeffrey Fortgang, the
last medical professional that Nguyen saw, also noted that
Nguyen did not seem "imminently suicidal or hopeless."
Although clinicians commonly assess the "imminence of the
risk of suicide," such assessment, even for clinicians, is
difficult and disputed. See, e.g., Hawes, Yaseen, Briggs, &
Galynker, The Modular Assessment of Risk for Imminent Suicide
(MARIS): A proof of concept for a multi-informant tool for
evaluation of short-term suicide risk, 72 Comprehensive
Psychiatry 88 (2017); Simon, Imminent Suicide: The Illusion of
Short-Term Prediction, 36 Suicide and Life-Threatening Behavior
296 (2006). We do not here in any way impose such assessment on
a nonclinician.
41
special relationship, we need not consider the duty of
reasonable care and whether a breach of such a duty occurred.
f. Voluntary assumption of a duty of care. The plaintiff
also claims the defendants had a duty stemming from their
voluntary assumption of a duty of care. "[A] duty voluntarily
assumed must be performed with due care." Mullins, 389 Mass. at
52. This duty, however, can lead to liability only where a
"failure to exercise such care increases the risk of such harm,
or "the harm is suffered because of the other's reliance upon
the undertaking." Id. at 53. Although MIT voluntarily offers
mental health student support services, there is no evidence
that these services increased Nguyen's risk of suicide.
Additionally, there was no evidence that Nguyen relied on MIT's
mental health services. The facts bear out Nguyen's rejection
of such services. Nguyen briefly consulted with MIT Mental
Health and the student support office for only a few months in
2007, nearly two years before his death. Nguyen wanted
assistance from MIT only as it pertained to test-taking and
wanted to keep his mental health treatment separate. Nguyen
declined further MIT services and instead engaged with nine off-
campus mental health professionals while remaining enrolled as
an MIT graduate student. Cf. Mullins, supra at 54 (prospective
residential students rely on university's security features).
Accordingly, the plaintiff cannot succeed on a "voluntarily
42
assumed duty" theory.
3. Punitive damages for wrongful death, conscious pain and
suffering, and breach of contract. The plaintiff asserts that
he is entitled to punitive and emotional distress damages
because the defendants' reckless or grossly negligent conduct
was the proximate cause of Nguyen's death. As we concluded
above, there was no evidence of the defendants' negligence and
consequently the plaintiff cannot succeed on such claims. The
plaintiff also cannot succeed on his breach of contract claim,
as references to MIT Mental Health and the student support
office's coordination of services is merely generalized and not
sufficient to form an enforceable contract. See Guckenberger v.
Boston Univ., 974 F. Supp. 106, 150 (D. Mass. 1997). Further,
even if such a contract existed, the claim would still fail, as
Nguyen rejected assistance from both MIT Mental Health and the
student support office.
4. Motion to amend. The plaintiff contends that his
motion to amend the complaint to assert claims against former
MIT chancellor Clay should have been allowed. The Superior
Court judge denied the motion on grounds of futility.
We review the denial of a motion to amend the complaint for
abuse of discretion. Murphy v. I.S.K.Con. of New England, Inc.,
409 Mass. 842, 864 (1991), cert. denied, 502 U.S. 865 (1991).
Although leave to amend should be "freely given when justice so
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requires," Mass. R. Civ. P. 15 (a), 365 Mass. 761 (1974), such
leave may be denied where there is undue delay, undue prejudice
to the opposing party, or futility in the amendment (citation
omitted). Mathis v. Massachusetts Elec. Co., 409 Mass. 256, 264
(1991). Here, Clay, who served as chancellor of MIT from 2001
through 2011, directed efforts in implementing MIT's mental
health task force. At the time of Nguyen's death, several key
recommendations had not yet been implemented. There was no
indication that Clay had any personal knowledge of Nguyen's
mental health issues or was personally involved with Nguyen in
any other way. Clay had no common-law duty to prevent Nguyen's
suicide, nor any special relationship with Nguyen, and he had
not voluntarily assumed a duty of care. Furthermore, Clay had
no individual liability solely on the basis of his "general
supervisory role." Lyon v. Morphew, 424 Mass. 828, 833 (1997).
Consequently, the proposed claims against Clay would be futile,
and we conclude that there was no abuse of discretion in denying
the plaintiff's motion to amend.
5. Workers' compensation. The plaintiff argues that
Nguyen was not an MIT employee at the time of his death and
consequently his tort claims were not barred by the exclusivity
provision of the workers' compensation act, G. L. c. 152. The
defendants claim that Nguyen was acting as an MIT employee and
the tort claims were barred. We conclude, as did a judge in the
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Superior Court in his written decision on cross motions for
summary judgment that were filed on this issue, "that there are
too many conflicting pieces of material evidence presented for
this court to determine, as a matter of law, the unique question
of whether or not Nguyen was an MIT employee at the time of his
death." The factual record is undeveloped and unclear and the
briefing inadequate on this difficult question involving paid
summer research outside of Nguyen's ordinary graduate school
activity for which he received a stipend. Further complicating
matters, the financial and other documentary evidence is unclear
as to Nguyen's work status at MIT on June 2, 2009.
Additionally, whether the June 2, 2009, telephone call prior to
the suicide was work or school-related is also in question.
Consequently, there was no error in the denial of summary
judgment on this issue. See Maxwell v. AIG Domestic Claims,
Inc., 460 Mass. 91, 97 (2011).
Conclusion. For the foregoing reasons, we conclude that
summary judgment was properly granted for the defendants on the
tort claims as a matter of law. We further conclude that the
Superior Court judge properly denied summary judgment on the
workers' compensation claim, as there are material disputed
facts.
So ordered.