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Suicide note rights and liabilities

By their very nature, suicide notes are controversial documents.  Nobody likes to think or talk about them, despite accompanying many – probably most – of the suicides that occur in America.  There were 34,598 reported suicide deaths in 2007 alone, making it the fourth leading cause of death for adults aged 18-65.

So, where to begin?

Who owns the note

A Slate article from 2008 states that either the medical examiner or sheriff “controls the contents” of a suicide note.  While true, Eugene Volokh notes that this does not resolve the issue of ownership.  The imperative to investigate deaths grants the government custody over the note, but not title to it; the note, like other personal property, becomes part of the deceased’s estate to be disposed of by will or intestacy under the relevant state’s law. (It would be particularly interesting to see how this issue would resolve in a community property state.)

Republication of the note

Often, suicide notes are not republished, except in notable cases like Joseph Stack’s.  To a large degree, this is out of sympathy for the affected family and, from a newsworthiness perspective, the relative obscurity of many people who commit suicide.  However, there’s another specter lurking in the background: Copyright.

Even without a copyright notice or registration, any note longer than a few words is protected by copyright.  As explained above, those rights transfer to the deceased’s family or heirs after his or her death, and they control the republication of the note.

Volokh, however, notes an end-run around this tactic: When the note has been placed on the public record, such as in a medical examiner’s findings or police record, it may be republished from there.  Although the initial note would be covered by copyright, the renderings of it available on the public record, generally obtained through a federal or state Freedom of Information Act request,  could be used as a matter of fair use – citing to a public record – without seeking the owners’ permission.

The blame game

Suicide notes sometimes identify people, entities and events that spurred the event.  This step is sardonically encouraged by some suicide note-writing guides.  For the above-stated reasons, though, the people responsible for the suicide are seldom publicly identified.  When they are, though, criminal and civil consequences can follow.

Mere allegations of blameworthiness do not create liability, but may point prosecutors and family members in the right direction.  In Eisel v. Board of Education for Montgomery County, 597 A.2d 447, 450 (Md. App. 1991), the Maryland Court of Appeals identified the dearth of relevant case law not only in its state, but in others as well, concerning parties who caused or failed to prevent – in breach of a pre-existing duty – a suicide.  In that case, the deceased’s school had notice of the girl’s suicidal intent, and may have breached its duty to prevent it. Id. at 456.  Also relevant is the Eastern District of Wisconsin’s holding in Logarta v. Gustafson, 998 F. Supp. 998, 1004, (E.D. Wis. 1998), that liability for suicide may be proper “where defendant’s negligent or criminal conduct can be said to have caused the deceased to commit suicide.”

Surprising, however, is the dearth of case law regarding the note-writer’s liability for blaming another person as the impetus for his or her action.  For the reasons described above, it is not certain that those blamed for the death would even know about it, as the notes are not often published and their contents may not be shared with people outside the family who may be upset by them.  This does not mean, however, that a person implicated in the suicide of another is without recourse.

First, the blamed party could try to bring an action for defamation.  This requires showing that he or she was defamed by a false statement in the writing, which was published, whether intentionally or negligently, and damage was done to the blamed party.  First, the scope and nature of publication will vary widely on a case-by-case basis, and may affect the damage calculation.  Just as the ancients wondered if a falling tree made sound if nobody heard it, does defamation cause sufficient damages to warrant a suit if nobody sees it?  Second, the statement may not be purely defamatory, and reasonable minds could differ about whether someone pushed the victim to commit suicide — something that a potential plaintiff may not want to reveal in the case’s pleadings, even if untrue.

Other causes of action that come to mind are intentional infliction of emotional distress (IIED) and negligent infliction of emotional distress (NIED).  For IIED, the note-writer would have to act intentionally or recklessly, the identification of the victim in the note would have to be extreme and outrageous, and be the cause of the identified party’s real, actual emotional distress.  First, even if the writer’s note is intentional – and it almost certainly is – is it extreme or outrageous to explain to loved ones the underlying causes of a dramatic decision?  Even if there’s a claim that it is outrageous, such as identifying a person responsible for the death with a paragraph-long rant about how the deceased hopes it haunts and ruins the identified person’s life forever, it is only words on paper, rather than the kind of in-person physical conduct associated with IIED.  Again, if someone wants to put the incident behind him or her, litigating what he or she is entitled to for being blamed in another person’s suicide seems like a poor way to get on with life.

In that vein, NIED also seems like a poor claim.  NIED requires an underlying duty between the note-writer and the identified person to exist, which is breached by harmful conduct — namely the writer’s identification of the other person, causing damage through extreme and outrageous conduct.  In addition to the above discussion regarding extreme and outrageous conduct, there is the difficulty of finding a duty between the note-writer and the identified person.  While courts may be quicker to find one where a pre-existing relationship exists, such as a familial bond, finding one between acquaintances or even nemeses seems like a more difficult proposition.  Additionally, many states have specific requirements for NIED recovery, such as allowing recovery only for physical injuries, requiring the injured person to be a family member, being in the zone of impact for physical injuries, showing physical harm evidencing emotional distress, and more.

Finally, there is the issue of taste.  Suing someone’s estate in the wake of suicide, even if potentially viable, would strike most people as despicable.  Even if a plaintiff identified in a suicide note is ready to go “all the way to the Supreme Court” (until he or she receives a bill, that is), it is unlikely that a lawyer worth his or her salt will take the case.  This effect likely would be amplified in small towns and close-knit communities.

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