ANDREW ANDREASEN, etc. v. KLEIN, GLASSER, PARK & LOWE, P.L., etc.

Third District Court of Appeal
State of Florida
Opinion filed June 22, 2022.
Not final until disposition of timely filed motion for rehearing.
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No. 3D20-1498
Lower Tribunal No. 19-25191
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Andrew Andreasen, etc.,
Appellant,
vs.
Klein, Glasser, Park & Lowe, P.L., etc., et al.,
Appellees.
An Appeal from the Circuit Court for Miami-Dade County, Abby
Cynamon, Judge.
Thomas J. Gruseck (West Palm Beach), for appellant.
Keller Landsberg, P.A., and Dena B. Sacharow and D. David Keller
(Fort Lauderdale), for appellees.
Before LOGUE, GORDO and BOKOR, JJ.
BOKOR, J.
This appeal challenges the dismissal of a wrongful death complaint. In
2008, an uninsured motorist collided with a car driven by John Andreasen,
rendering John permanently disabled. 1 After several years of litigation
against both his insurer (for allegedly failing to allow stacking of his uninsured
motorist coverage) and his own former counsel (for allegedly failing to
competently litigate his claims against the insurer and eventually allowing
the claims to lapse), on March 10, 2019, John died by suicide.
Subsequently, John’s brother, Andrew, in his capacity as the personal
representative of John’s estate, brought the underlying wrongful death and
survival action against some of John’s former attorneys. The complaint
alleged negligence and legal malpractice as the proximate cause of John’s
death. Specifically, Andrew alleged that the attorneys’ failure to exercise
reasonable care and professional skill in representing John caused a lapse
of his stacking uninsured motorist coverage claims, prevented him from
having the financial ability to pay for ongoing treatment and medication, and
caused him to experience the pain and suffering that ultimately led him to
commit suicide. The trial court dismissed the action with prejudice for failure
to state a claim, finding that the attorneys owed John no legal duty to prevent
1
To avoid confusion, we use John and Andrew Andreasen’s first names
throughout this opinion.
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his suicide and that the alleged malpractice was not the proximate cause of
the death. This appeal followed.
We find that the complaint was properly dismissed because John’s
counsel did not have a legal duty to prevent his suicide. Our review of a
dismissal for failure to state a cause of action is de novo. See, e.g., Crawley-
Kitzman v. Hernandez, 324 So. 3d 968, 974 (Fla. 3d DCA 2021). Dismissal
of a complaint with prejudice is proper where the complaint has failed to state
a cause of action and it conclusively appears that the complaint could not be
amended to state a cause of action. Id. at 977.
To prevail on a wrongful death claim, the plaintiff must establish that
the defendant caused the decedent’s death through some wrongful act that
would have entitled the decedent to bring an action on their own behalf if
they had survived. § 768.19, Fla. Stat.; see also Toombs v. Alamo Rent-A-
Car, Inc., 833 So. 2d 109, 111 (Fla. 2002). The complaint here was
predicated on theories of negligence and legal malpractice, both of which
require a showing that the injury was caused by the breach of a duty on the
part of the defendant. See, e.g., Larson & Larson, P.A. v. TSE Indus., Inc.,
22 So. 3d 36, 39 (Fla. 2009) (discussing elements of legal malpractice); Fla.
Dep’t of Corr. v. Abril, 969 So. 2d 201, 204 (Fla. 2007) (“To maintain an
action for negligence, a plaintiff must establish that the defendant owed a
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duty, that the defendant breached that duty, and that this breach caused the
plaintiff damages.”).
“As a general rule, ‘there is no liability for the suicide of another or for
injuries sustained in a suicide attempt in the absence of a specific duty of
care.’” Kelley v. Beverly Hills Club Apartments, 68 So. 3d 954, 957 (Fla. 3d
DCA 2011) (quoting in part Paddock v. Chacko, 522 So. 2d 410, 416 (Fla.
5th DCA 1988)). While “[o]ne can assume such a duty by taking custody
and control over another,” a legal duty to prevent self-inflicted harm requires
“more than just foreseeability alone”; rather, such person must “be in a
position to control the risk.” Surloff v. Regions Bank, 179 So. 3d 472, 475–
76 (Fla. 4th DCA 2015) (quotation omitted) (affirming dismissal of wrongful
death complaint alleging that bank caused decedent’s overdose death by
informing decedent of loan denial despite knowledge of decedent’s inability
to process negative information; bank had no special relationship with
decedent that would enable bank to supervise or control decedent’s daily
activities or protect against self-inflicted injury); see also Kelley, 68 So. 3d at
957 (holding that apartment owner owed no duty to prevent suicide attempt
from mentally ill patient of lessee where undisputed facts established that
apartment owner had no particularized knowledge, custody, or control over
patient’s suicidal tendencies); Rafferman v. Carnival Cruise Lines, Inc., 659
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So. 2d 1271, 1273 (Fla. 3d DCA 1995) (holding that shipowner had no duty
to prevent crewman from committing suicide absent specific allegation that
shipowner was aware of crewman’s medical issues or suicidality); Iacono v.
Kingsley Arms Apartments, Inc., 47 Fla. L. Weekly D498 (Fla. 3d DCA Feb.
23, 2022) (affirming dismissal of wrongful death complaint predicated on
liability of apartment owner for suicide attempt by undiscovered trespasser
on premises).
Here, the complaint made no allegation that John’s attorneys were
aware he was suicidal or, more importantly, that the attorneys had any duty,
obligation, or legal ability to exercise any supervision or control over his daily
activities during the period they were representing him. In any case, while
the district courts have found that medical professionals may in some
circumstances have a duty to intervene if they become aware of a potentially
suicidal patient, no state court has extended a similar duty to attorneys, and
we decline to do so here. Cf. Paddock, 522 So. 2d at 415–16 (recognizing
the lack of a general duty for doctors to prevent the suicide of a patient,
except where the patient was in the custody of a hospital that was aware of
the potential risk and failed to take preventative measures); Garcia v.
Lifemark Hosps. of Fla., 754 So. 2d 48, 49 (Fla. 3d DCA 1999) (same);
Granicz v. Chirillo, 147 So. 3d 544, 549 (Fla. 2d DCA 2014) (reversing grant
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of summary judgment in favor of physician who failed to identify or prevent
patient’s suicidal tendencies when evidence demonstrated that applicable
standard of professional care involved assessing patient to determine
suicidality and intervening if necessary). No duty of care existed here.
Accordingly, because the theory of recovery alleged in the complaint was
facially insufficient to state a claim for wrongful death, the complaint was
properly dismissed.
Affirmed.
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