Cheri Surloff, as Personal Representative of the Estate of Dr. Arthur B. Surloff, etc. v. Regions Bank and Mark K. Anderson

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
CHERI SURLOFF,
as personal representative of the Estate of Dr. Arthur B. Surloff,
deceased, on behalf of herself and all potential beneficiaries and heirs,
Appellant,
v.
REGIONS BANK,
an Alabama corporation, and MARK K. ANDERSON, an individual,
Appellees.
No. 4D14-842
[November 18, 2015]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County, Jack Tuter, Judge; L.T. Case No. 12-010356 CACE (19).
Joel D. Eaton of Podhurst Orseck, P.A., Miami, for appellant.
Joshua D. Lerner and Jessica G. Lagos of Rumberger, Kirk & Caldwell,
P.A., Miami, for appellees.
LEVINE, J.
The issue presented for our review is whether a bank has any duty or
“special relationship” with its client that would result in the bank being
liable for its client’s suicide. We hold that a bank has no duty to its client
because no “special relationship” exists whereby a bank has the right or
ability to prevent its client’s suicide. We, therefore, affirm the trial court’s
dismissal of appellant’s complaint.
Appellant, Cheri Surloff, personal representative of the Estate of Dr.
Arthur B. Surloff, the decedent, filed an amended complaint for wrongful
death against appellees, Regions Bank and its Senior Vice President, Mark
Anderson. All of the following facts are as alleged in the complaint and are
accepted as true for the purposes of this appeal.
The complaint alleged the decedent suffered from mental and physical
impairments resulting in the decedent being unable to process complex
information. The decedent went to meet with representatives of Regions
regarding the mortgage the decedent held with Cheri Surloff. Because of
the decedent’s condition, several members of his family went with him.
The decedent’s family informed Regions’s representatives of the decedent’s
anxiety related to financial matters and explained he had an inability to
“deal with complex information, especially negative financial information.”
The decedent’s family specifically requested that Regions not contact the
decedent, except with regard to “ministerial or document requests.”
Regions’s representative agreed to the family’s terms, and over the course
of the loan process, “repeatedly reaffirmed their commitment” not to
contact the decedent about complex financial information.
Subsequently, the decedent received a letter by mistake, informing him
that his loan was denied. As a result, the decedent became upset. The
decedent’s family again told Regions’s representative not to communicate
with the decedent and not to contact the decedent regarding the loan.
Representatives from Regions met with the decedent’s doctor. The
doctor reiterated to Regions that the decedent had a permanent disability
and warned Regions’s representatives of the decedent’s “fragile condition”
and the “likelihood that Dr. Surloff could cause mental and physical harm
to himself.” The decedent’s doctor also had extensive notes regarding the
decedent’s proclivity for self-harm, and “on information and belief” the
doctor referenced these notes in his discussions with Regions. The
complaint also indicated Regions “may” have been provided these records
although no evidence suggested the bank ever received them.
Regions’s employee, Mark Anderson, continued to speak with the
decedent, despite being told not to do so. Upon discovering that Anderson
had spoken with the decedent, Regions’s Vice President and Relationship
Manager reminded Anderson not to contact the decedent. However, two
days later, Anderson told the decedent his loan was denied. The decedent
then left, went to a motel, ingested a large of amount of medication, and
died in the hospital three days later.
Based on the foregoing, appellant brought claims against appellees for
negligent undertaking and negligent infliction of emotional distress.
Appellant alleged that because of appellees’ “voluntary assumption” to
handle the loan “without contacting [the decedent] as to financial or
substantive issues,” appellees “owed [decedent] a duty of reasonable care.”
Appellees “knew or should have known that communicating with [the
decedent] directly and informing him that the loan was denied would
severely emotionally traumatize and distress him.” Appellees breached
their duty by communicating to the decedent that his loan had been
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denied. This caused the decedent “severe emotional distress” and
ultimately resulted in the decedent’s death.
Appellees moved to dismiss the complaint for failure to state a cause of
action. The trial court granted the motion, dismissing both counts with
prejudice. The trial court held appellees owed the decedent no duty,
stating that the bank never had any knowledge the decedent would commit
suicide and no nexus existed between Regions’s duty and the decedent’s
suicide.
On appeal, appellant argues that the trial court erred in dismissing her
complaint because the decedent’s death was foreseeable, and Regions
undertook a duty to safeguard the decedent when it gave repeated
assurances that it would refrain from discussing complex financial
matters with the decedent.
We review the trial court’s grant of the motion to dismiss for failure to
state a cause of action de novo. Goodall v. Whispering Woods Ctr., L.L.C.,
990 So. 2d 695, 697 (Fla. 4th DCA 2008). “In reviewing an order granting
a motion to dismiss, this court’s gaze is limited to the four corners of the
complaint. The facts alleged in the complaint must be accepted as true
and all reasonable inferences are drawn in favor of the pleader.” Id.(citation and internal quotation marks omitted).
A cause of action based in negligence requires the defendant to have
had a duty to the plaintiff. Clay Elec. Co-op., Inc. v. Johnson, 873 So. 2d
1182, 1185 (Fla. 2003). “Whether a duty exists is a question of law for the
court.” Biglen v. Fla. Power & Light Co., 910 So. 2d 405, 408 (Fla. 4th DCA
2005). The “polestar” for determining both the existence and scope of a
legal duty is foreseeability. Id. “[W]henever a human endeavor creates a
generalized and foreseeable risk of harming others . . . ‘the law generally
will recognize a duty placed upon defendant either to lessen the risk or see
that sufficient precautions are taken to protect others from the harm that
the risk poses.’” McCain v. Fla. Power Corp., 593 So. 2d 500, 503 (Fla.
1992) (quoting Kaisner v. Kolb, 543 So. 2d 732, 735 (Fla. 1989)). Indeed,
“reasonable, general foresight is the core of the duty element.” Id. In
addition to foreseeability of harm, in order for a legal duty to exist “the
defendant’s conduct must ‘create’ the risk.” Aguila v. Hilton, Inc., 878 So.
2d 392, 396 (Fla. 1st DCA 2004).
Under Florida’s “undertaker’s doctrine,” “[w]henever one undertakes to
provide a service to others, whether one does so gratuitously or by
contract, the individual who undertakes to provide the service—i.e., the
‘undertaker’—thereby assumes a duty to act carefully and to not put
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others at an undue risk of harm.” Clay Elec. Co-op., 873 So. 2d at 1186.
“Voluntarily undertaking to do an act that if not accomplished with due
care might increase the risk of harm to others or might result in harm to
others due to their reliance upon the undertaking confers a duty of
reasonable care, because it thereby ‘creates a foreseeable zone of risk.’”
Union Park Mem’l Chapel v. Hutt, 670 So. 2d 64, 67 (Fla. 1996) (quoting
McCain v. Fla. Power Corp., 593 So. 2d 500, 503 (Fla. 1992)).
Generally no liability exists for another’s suicide in the absence of a
specific duty of care. Kelley v. Beverly Hills Club Apartments, 68 So. 3d
954, 957 (Fla. 3d DCA 2011); Paddock v. Chacko, 522 So. 2d 410, 416 (Fla.
5th DCA 1988). One can “assume” such a duty by taking custody and
control over another. Estate of Brennan v. Church of Scientology Flag Serv.
Org., 832 F. Supp. 2d 1370, 1377-78 (M.D. Fla. 2011). For example, a
duty to prevent suicide exists where a patient is committed to a
psychological institution, Kelley, 68 So. 3d at 957, or where a child is
under the supervision of a school, see Wyke v. Polk Cnty Sch. Bd., 129
F.3d 560, 571 (11th Cir. 1997). Alternatively, some Florida courts have
determined that professionals, such as psychiatrists, have a duty to treat
patients in accordance with professional standards and may be liable if
negligent care results in a patient’s suicide. See Granicz v. Charillo, 147
So. 3d 544, 548-49 (Fla. 2d DCA), review granted, 168 So. 3d 224 (Fla.
2014). But see Lawlor v. Orlando, 795 So. 2d 147, 148 (Fla. 1st DCA 2001)
(holding a psychotherapist had no duty for the suicide of a patient in a
non-custodial setting).
A legal duty requires more than just foreseeability alone. Aguila, 878
So. 2d at 396. A duty requires one to be in a position to “control the risk.”
Id. Thus, in cases of psychiatric facilities, they are liable for a patient’s
self-harm because they are “in a position to exercise measures to prevent
the suicidal patients from inflicting injuries on themselves.” See Paddock,
522 So. 2d at 416. But where a patient commits suicide outside of a
facility’s “range of observation and control,” a duty is not present. See
Tuten, 84 So. 3d at 1068. See also Peklun v. Tierra Del Mar Condo. Ass’n,
25 Fla. L. Weekly Fed. D 226 (S.D. Fla. Aug. 4, 2015) (holding a
condominium association had no duty to a woman who had committed
suicide after the association removed the woman’s dog because, while the
association knew the dog was essential to the woman’s “will to live,” the
association had no authority to prevent the woman’s suicide).
In the instant case, Regions did not assume a specific duty of care to
prevent the decedent from committing suicide. Although Regions allegedly
knew of the decedent’s mental state and agreed to withhold complex
financial information from the decedent, Regions could not undertake a
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duty to prevent the decedent’s suicide because the decedent was not in
Regions’s “custody or control.” See Kelly, 68 So. 3d at 958. See also
Paddock, 522 So. 2d at 416 (“The duty [to prevent another’s suicide] is
based solely on the fact of the patient’s confinement to the hospital, and
the hospital’s ability to supervise, monitor and restrain the patient.”)
(emphasis added); Tuten v. Fariborzian, 84 So. 3d 1063, 1068 (Fla. 1st
DCA 2012) (holding that a psychiatrist had no duty to detain a patient who
killed himself and injured his wife because the patient was “outside of the
scope of the facility’s range of observation and control” even when the
psychiatrist agreed to treat the patient, the patient had suicidal
tendencies, and the psychologist took the patient into custody but then
later permitted him to leave). Regions simply had no ability or
responsibility to protect the decedent from committing suicide.
Appellant relies on Rafferman v. Carnival Cruise Lines, Inc., 659 So. 2d
1271 (Fla. 3d DCA 1995), for the position that one can be held liable for
another’s suicide so long as the suicide is foreseeable. In Rafferman, the
helmsman on a cruise ship committed suicide and his widow brought a
wrongful death action against the cruise line. The plaintiff based her claim
on “the duty a shipowner owes a seaman to take reasonable precautions
to protect him from a danger” pursuant to the Jones Act, 46 U.S.C. §
30104 and general maritime law. Id. at 1272. The court held the cruise
line should not be liable because the defendant was not aware of the
seaman’s suicidal intentions.
Rafferman applied federal maritime law, which “assigns a heavy
responsibility for the safety of seamen to the owner of the ship” because
“seamen are subject to rigorous discipline while at sea and must accept,
without criticism, working conditions on orders from superior officers.”
Dempsey v. Mac Towing, Inc., 876 F.2d 1538, 1542 (11th Cir. 1989). A
consequence of this responsibility under federal maritime law is that a
shipowner has a duty to prevent the foreseeable, self-inflicted injury of the
ship’s crew. See Rafferman, 659 So. 2d at 1273.
Obviously, banks and their clients do not share the same, close
relationship as shipowners and their seamen. A bank neither supervises
its clients’ day-to-day activities, nor exerts any type of supervisory control
over them. Because a bank does not have this responsibility, it also does
not have the corollary responsibility to protect its clients against self-
inflicted injury. See also Aguila, 878 So. 2d at 399 (“[T]he fact that a
defendant realizes or should realize that an action on his or her part is
required to ensure the safety of another person does not alone create a
duty to take that action. The defendant must also have a right to take the
action in question.”) (citation omitted). Because Regions had no duty or
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“heavy responsibility” to the decedent by virtue of their relationship, unlike
in Rafferman, the inquiry in this case does not even reach the question of
whether the decedent’s suicide was foreseeable. See Rafferman, 659 So.
2d at 1272-73.
Appellant also argues that the theory of negligent infliction of emotional
distress requires recognition of a duty. We dispense with this argument,
finding it without merit.
In summary, we hold that the bank had no duty to appellant since no
special relationship existed between the bank and its client, and we further
hold the bank did not and could not undertake to protect appellant from
any self-inflicted injury. Thus, we affirm.
Affirmed.
STEVENSON and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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