Balancing Prevention and Liability: The Use of Waiver to Limit University Liability for Student Suicide

When Ms. Li’s son started university in the fall of 2013, Ms. Li was shocked when her son was asked to sign a “student management and self discipline agreement,” which freed the university of any liability if a student were to commit suicide or otherwise self-inflict injuries. The City College of Dongguan University of Technology, located in the Guangdong providence of China, asked its 5,000 incoming freshman to sign the contract, along with other paperwork typically required for matriculation in higher education, due, at least in part, to the staggering suicide rates that China has seen in the past years. And the City College is not the first to make this request of its students; Shandong Jianzhu University, also located in China, requested that its 20,000 students sign a similar waiver of liability in November of 2010. According to the American Foundation for Suicide Prevention, 38,364 suicides were reported in the United States in 2010, equating to a death by suicide every 13.7 minutes. Further, statistics estimate that 7% of all college students in the United States have suicidal thoughts, while 1% of college students attempt suicide. With increasing suicide rates among their students, colleges and universities across the country have taken action, some ramping up their mental health programs and hiring more college therapists, while others have instituted new college policies to cover reporting requirements and procedures requiring the expulsion of students who display symptoms that indicate the student may attempt or commit suicide. Courts have traditionally held that suicide is a “deliberate, intentional and intervening act that preclude[d] another’s responsibility for the harm.” Exceptions to this general rule, however, have become more prevalent, particularly in two specific cases: (1) “where the individual or entity actually caused the suicide”; and (2) “when the individual or entity had a duty to prevent the suicide.” Case law in the United States has overwhelmingly freed colleges and universities from liability in the case of student suicide, finding that the schools neither caused the suicide nor had a special duty to prevent the suicide. However, three cases, Schieszler v. Ferrum College, Shin v. Massachusetts Institute of Technology, and Leary v. Wesleyan University have somewhat muddied the waters. These cases suggest that a jury could find that a special relationship did exist and therefore hold the school liable for the suicide of one of its students in the future.To date, no colleges or universities in the United States have instituted a waiver that releases the school from liability in the case of student suicide or self-inflicted harm, but with international institutions beginning to do so, it is likely that schools in the United States may at least consider taking a similar approach. Because institutions are able to create binding waivers to release themselves from liability for foreseeable negligence, a suicide waiver, if implemented by colleges in the United States, may help prevent schools from facing liability for student suicide and self-inflicted harm in the future. Additionally, implementing waivers of this sort could incentivize the school to provide additional help and resources for students suffering with mental illnesses, which could help manage the suicide rates of college students. However, suicide waivers alone are unlikely to actually deter student suicide, potentially leaving universities with the challenge of preventing student suicide unless the schools take further steps and implement other policies to help curb student suicide.Part I of this Article discusses the case law history of university liability, beginning with an overview of the cases that have clearly held that schools are not liable for student suicide and then dissecting the Schieszler, Shin, and Leary cases, in which the courts have been less clear. Part II considers the waiver option by first illustrating the law of waiver generally and then exploring the different reasons a court may hold a waiver to be enforceable. Part III examines possible defenses to the enforceability of suicide waivers specifically, drawing on the law of waiver discussed in Part II. Part IV evaluates the suicide waiver as a viable option by comparing it to other policies that universities have implemented to help suppress liability and prevent student suicide. Part IV concludes with a brief discussion of the use of suicide liability waivers in other forums, such as juvenile detention facilities and summer camps.