Opinion
906670-18
02-27-2020
Dean W. WEBB as Administrator of the Estate of Kyle D. Webb, deceased, and Dean W. Webb and Julie W. Webb, Individually, Plaintiffs, v. Kristyn N. MULLER, Leandra Harris, And John and Jane Does 1 Through 10, Defendants.
PHILLIPS & PAOLICELLI, LLP, Attorneys for Plaintiffs, Ari L. Taub, Esq., Of Counsel, 747 Third Avenue, 6th Floor, New York, New York 10017. HON. LETITIA JAMES, Attorney General of the State of New York, Attorney for Defendants, Douglas R. Kemp, AAG, Of Counsel, The Capitol, Abrams Justice Building, Albany, New York 12224.
PHILLIPS & PAOLICELLI, LLP, Attorneys for Plaintiffs, Ari L. Taub, Esq., Of Counsel, 747 Third Avenue, 6th Floor, New York, New York 10017.
HON. LETITIA JAMES, Attorney General of the State of New York, Attorney for Defendants, Douglas R. Kemp, AAG, Of Counsel, The Capitol, Abrams Justice Building, Albany, New York 12224.
Justin Corcoran, J. Plaintiff Dean Webb ("plaintiff") commenced this wrongful death action as the administrator of the estate of his late son Kyle D. Webb ("Kyle" or "decedent"), and individually with his wife, Kyle's mother, Julie Webb (collectively "plaintiffs"). Decedent, a twenty-year old on-campus undergraduate student at the State University of New York at Albany ("SUNY"), passed away on April 9, 2014 from a heroin overdose. Plaintiffs allege that Kyle committed suicide after exhibiting suicidal ideation to his friends and a SUNY employee. Plaintiffs claim that defendants Kristyn N. Muller and Leandra Harris (collectively "defendants"), both of whom were employed at SUNY, negligently responded to concerns about Kyle's mental health including suicidal ideation. Plaintiffs argue that if defendants intervened appropriately, university police would have been summoned and referred Kyle to psychiatric care which would have prevented his suicide. This action was initially commenced in Suffolk County Supreme Court; venue was transferred to Albany County Supreme Court. Plaintiffs filed a companion claim against the State of New York in the Court of Claims, which denied the state's dispositive motion. More particularly, the Court of Claims (Hard, J.) found material issues of fact concerning the state's breach of a legal duty owed to Kyle and his parents, including whether the state (through the conduct of defendants in this action) properly assessed Kyle and whether they adhered to SUNY's suicide prevention protocols.
Defendants Muller and Harris now move for summary judgment dismissing plaintiffs' complaint on essentially the same grounds considered by the Court of Claims in denying summary judgment to the state in the companion claim. This action and the instant motion were reassigned to this Court on January 6, 2020. Counsel appeared for oral argument on January 28, 2020 to address the merits of the dispositive motion as well as the preclusive effect, if any, to be accorded the decision/order of the Court of Claims in the companion claim. For reasons set forth in more detail below, defendants' motion for summary judgement is DENIED and plaintiffs' application for the Court to accord collateral estoppel effect to the Court of Claims' determination is DENIED WITHOUT PREJUDICE .
Facts
In April 2014, Kyle was a 20-year old undergraduate at SUNY Albany residing on campus in a dormitory apartment with several friends. He struggled socially and academically and used alcohol and illicit drugs. During the winter break preceding the spring 2014 semester, Kyle's parents took him to a physician who diagnosed his depression, after which Kyle began taking prescribed antidepressant medication. According to Kyle's roommate Conner Purcell, Kyle was depressed over a break-up with a girlfriend and he was regularly skipping classes. Kyle drank beer several times weekly, smoked marijuana daily, used Nyquil to sleep, and took Xanax frequently. On April 8, 2014, Conner communicated with Kyle by text message about his drug use and mental health. In response to Conner's text disclosing that he knew Kyle was contemplating buying heroin, Kyle responded, "I wanna kill myself dude." Over the course of the day, Kyle texted Conner about his plan to drop out of school and stated "everyone hates me the girl I love hates me my family hates me I wanna get out of this world I'm crying I literally can't take this anymore." Kyle also texted "my life is meaningless."
These communications prompted Conner to telephone Kyle's father to express his concerns. After plaintiff tried without success to reach his son Kyle by phone, he telephoned SUNY and told a student assistant in the residential life office that he was concerned about Kyle's well-being. Specifically, plaintiff allegedly reported that Kyle expressed suicidal thoughts multiple times to his roommates. Plaintiff's call prompted defendant Kristyn Muller to visit the dormitory where Kyle lived with Conner Purcell and others.
Muller, the apartment coordinator for the residential life office, went to check on Kyle on April 8, 2014. Her interaction with Kyle on that date, and the conclusions that she reached about his mental state, were explored extensively in discovery and constitute the basis for this action. In relevant part, Muller was notified by a student assistant about decedent's possible suicidal ideation. As she arrived near Kyle's apartment, she encountered Conner Purcell. Conner was talking to Kyle's mother on a cell phone and handed the telephone to Muller. Muller spoke with Kyle's mother for a few minutes during which Mrs. Webb explained that Kyle was doing poorly in school and had suffered from depression. Muller told Mrs. Webb that she would speak with Kyle, find out how he was doing, and refer him to any appropriate resources. Shortly after Muller appeared, Kyle arrived outside. Muller spoke to Kyle and Conner. Kyle was angry that Conner had called Kyle's parents; Conner responded that he did not take Kyle's suicide threats lightly. Kyle told Muller that he was not doing well academically and was going through a rough break-up but did not have a plan to kill himself. Kyle acknowledged that he had been suffering from depression, that he was taking anti-depressant medication and that he thought of suicide previously but was not presently thinking of killing himself. Kyle offered to show Muller the text messages he sent to Conner. Muller reviewed messages including "my life is meaningless" and "I do not want to be here"; Muller contends that she did not scroll through all of the texts and that she did not see the other messages that were more direct expressions of suicidal ideation including "I wanna kill myself ".
Muller counseled Kyle about using alcohol as a coping mechanism after he admitted that he drank excessively recently to cope with the breakup. At the end of this encounter, Muller concluded that there was no reason to believe that Kyle had any present intention of killing himself. She explained to Kyle that it did not seem necessary for her to call university police to further investigate his well-being and that she would instead direct him to make an appointment with a counselor from residential life. She reported her findings to her supervisor Harris and made a contemporaneous note of her encounter. Muller determined, with Harris' approval, that Kyle could be seen for an on-campus appointment with Charles Rogers (a SUNY employee with direct counseling experience) and that no more immediate intervention was required. Muller twice encountered Kyle by chance later the same day as she was conducting other business at Freedom Apartments. On neither occasion did she observe Kyle exhibit any worrisome behavior.
Muller's decisions that day were informed by her training in recognizing suicidal ideation and distinguishing factors that favored taking immediate action instead of referring a student for counseling. She testified that a student who expressed suicidal thoughts with means to carry out a plan should be deemed an imminent danger; university police would be called to respond in those situations. If a student exhibited mere warning signs, then it would be appropriate to refer the student on a less urgent basis to Care Net, a SUNY program that required a student to meet with a residential life supervisor and follow up with counseling center staff in order to remain a campus resident. She acknowledged in her deposition that Kyle's parents were concerned about his depression and that he was generally not doing well. Muller conceded that Kyle's texts to Conner could indicate suicidal ideation; she qualified her responses by explaining that she did not review those texts thoroughly before ultimately concluding that Kyle was not at imminent risk and that there was no reason to summon university police.
Defendants were trained to deal with residents in crisis and specifically how to extract relevant and truthful information from a student who may be considering suicide and what to do if the student was determined to be suicidal. They were trained to analyze the student's body language and words in order to gain insight into his mental state. According to SUNY training, if a staffer identified a student with current suicidal ideation and means to act upon it, the staffer was required to call university police, who would then determine whether to call the university ambulance to transport the student to the Capital District Psychiatric Center. Alternatively, defendants were trained to refer a student who exhibited warning signs but had not explicitly stated a plan to harm himself and did not appear to be in imminent danger to Care Net. See Leandra Harris Affidavit at ¶5-8 and Kristyn Muller Affidavit at ¶4-12
Pursuant to university policy and protocols entitled "Save A Life", SUNY residential life staff were trained to refer students to university police immediately when a student had threatened suicide, either verbally or in writing. Staff were trained to consider various factors in deciding when to refer a student to the university police (rather than scheduling an outpatient counseling appointment) including: diminished function, including academic function; a recent crisis in a relationship (i.e. "a break-up"); persistent sadness; difficulty sleeping; thinking/writing about suicide or dying; and using alcohol or drugs to cope. Though Muller testified that decedent satisfied most or all of these criteria that weighed in favor of calling university police, she concluded after speaking to Kyle that he did not constitute an imminent threat to himself, and that referral to counseling was appropriate. She conceded that a counseling appointment usually happened a day or two after the staff encounter with the student. She testified that knowing more about Kyle's multiple threats of suicide to his roommates may have influenced her assessment of his "imminent risk." She stated that while the entirety of the texts from Kyle to Conner were consistent with suicidal ideation in hindsight, she did not thoroughly review the texts during her encounter with him. Notably, she relied upon Kyle's reassurance that he was not presently suicidal in deciding to refer him for counseling under the "Care Net" policy rather than calling university police. Muller documented her encounter with Kyle and advised Harris about her recommendation that Kyle be seen by Charles Rogers, the senior associate director of residential life. At the conclusion of Muller's encounter with Kyle, her plan included investigating whether Rogers could accommodate Kyle's request for an appointment near his apartment. She did not ask police to evaluate Kyle. She memorialized her decision in a written report and briefed Harris on her interaction and plan.
The decision-making process of residential life staff confronted by a student in crisis was further described at a deposition of Charles Rogers, the SUNY associate director of residential life who managed the apartments where Kyle resided. Rogers supervised defendants Leandra Harris and Kristyn Muller. He described the origins of the suicide prevention protocol and guidelines and how they should be executed by staff. In relevant part, he testified that if his staff learned of a text message or communication stating, in substance, "life is too hard, I want to die," staff would contact university police and then notify professional staff on duty. He explained that the police have skills for investigating possible suicidal threats or ideation that other members of the university staff lack. He further testified that if he had been contacted by subordinates on April 8, 2014 and advised that a student expressed thoughts of self-harm, he would have asked university police to respond. Defendants Harris and Muller acknowledged that notifying university police is mandatory under SUNY protocols if it is determined that a student is at imminent risk or if the staff member was "unsure of whether a student is at imminent risk." According to Rogers, a student who threatened suicide verbally or in writing would trigger mandatory "immediate assistance" measures. Inconsistency in the student's explanation of expressed suicidal ideation should also prompt staff to notify police. Then, university police would evaluate the student and determine whether to contact the Capital District Psychiatric Center to evaluate the student.
Later in the evening of April 8, 2014, Kyle apparently consumed heroin. He was observed "sleeping" in his apartment but was later found unresponsive, after which EMS was summoned and he was transported to the hospital where he was pronounced dead. An autopsy found he died of heroin toxicity. Defendants argue that decedent died of an accidental drug overdose while plaintiffs claim that he died of suicide. Plaintiffs urge an expansive view of "suicide" to include a reckless disregard for one's life as exhibited by consumption of drugs that may cause death.
Plaintiffs filed a claim against the State of New York in the Court of Claims. Defendants' motion for summary judgment was denied by the Court of Claims. Plaintiffs commenced an action against these defendants in Suffolk County Supreme Court and completed discovery before venue was moved to Albany County Supreme Court. Defendants now move for summary judgment dismissing plaintiffs' complaint on grounds including: (1) that defendants did not breach any duty owed to decedent, (2) that defendants are entitled to governmental immunity for discretionary acts, (3) that movants' psychiatry expert establishes their comportment with university guidelines, and (4) that expert proof supports their contention that decedent died of an accidental overdose rather than suicide.
Summary Judgment
"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact." Stonehill Capital Management, LLC v. Bank of the West (2016) quoting Alvarez v. Prospect Hosp . 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 (1986) (other citations omitted); CPLR 3212 (b). "Once the movant makes the proper showing, ‘the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action.’ " Id. quoting Alvarez , 68 N.Y.2d at 324, 508 N.Y.S.2d 923, 501 N.E.2d 572. The facts must be viewed in the light most favorable to the non-moving party. Ortiz v. Varsity Holdings, LLC , 18 N.Y.3d 335, 339, 937 N.Y.S.2d 157, 960 N.E.2d 948 (2011). If the movant fails to meet its burden to establish a prima facie case, tendering sufficient evidence to eliminate material issues of fact, the motion must be denied regardless of the sufficiency of the opposing papers. Vega v. Restani Const. Corp ., 18 N.Y.3d 499, 942 N.Y.S.2d 13, 965 N.E.2d 240 (2012) ; Winegrad v. New York University Medical Center , 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642 (1985).
As a threshold matter, the Court must determine whether any defendant owed a legal duty. "The definition of the existence and scope of an alleged tortfeasor's duty is usually a legal, policy-laden declaration reserved for Judges." Pink v. Rome Hockey Ass'n, Inc ., 28 N.Y.3d 994, 998, 41 N.Y.S.3d 204, 63 N.E.3d 1148 (2016). Courts make such declarations "by balancing factors, including the reasonable expectations of parties and society generally, the proliferation of claims, the likelihood of unlimited or insurer-like liability, disproportionate risk and reparation allocation, and public policies affecting the expansion or limitation of new channels of liability [with] reluctance to extend the duty of care such that a defendant may become liable for failure to control the conduct of others, imposing such duty only where ‘the defendant's relationship with either the tortfeasor or the plaintiff places the defendant in the best position to protect against the risk of harm; and that the specter of limitless liability is not present.’ " Gilson v. Metropolitan Opera , 5 N.Y.3d 574, 576-577, 807 N.Y.S.2d 588, 841 N.E.2d 747 (2005) quoting Matter of New York City Asbestos Litig ., 5 N.Y.3d 486, 493, 806 N.Y.S.2d 146, 840 N.E.2d 115 (2005).
In support of their motion for summary judgment, defendants argue that: (1) they were engaged in governmental (not proprietary) functions from which liability may arise only if they violated a special duty and (2) their conduct constituted the exercise of discretionary authority from which liability may not attach even if they acted negligently. Defendants also argue that their alleged violation of SUNY suicide-prevention policies does not constitute a breach of any duty owed decedent and that the claimed policy violations may not, as a matter of law, support recovery under a theory of an "assumed duty."
The Court is not persuaded by defendants' "assumed duty" arguments. The record supports an inference that by responding to a student in crisis and advising his parents and friends that he was not at imminent risk of self-harm, Muller placed decedent in a more vulnerable position than he would have been in had defendants done nothing. See, Heard v. City of New York , 82 N.Y.2d 66, 72, 603 N.Y.S.2d 414, 623 N.E.2d 541 (1993). An alleged tortfeasor may not avoid liability for negligently responding to a potentially suicidal student by claiming that the failure to execute SUNY policies did not prompt decedent or his parents to change their own conduct by providing a false sense of security. At the very least, there are questions of fact that Muller offered a direct assurance of safety to Kyle's parents who were less familiar with the hazard posed by Kyle's mental state and who foreseeably relied on Muller to evaluate him. "[O]ne who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all." H.R. Moch Co. v. Rensselaer Water Co ., 247 NY 160, 167, 159 N.E. 896 (1928). See Parvi v. City of Kingston , 41 N.Y.2d 553, 394 N.Y.S.2d 161, 362 N.E.2d 960 (1977) ("even when no original duty is owed to the plaintiff to undertake affirmative action, once it is voluntarily undertaken, it must be performed with due care.").
Plaintiffs argue in opposition that defendants cannot establish as a matter of law that they neither owed nor assumed a legal duty after disregarding their own suicide-prevention policies. Specifically, plaintiffs argue that defendants' conduct was proprietary (not governmental), such that ordinary negligence principles apply. Alternatively, plaintiffs argue that defendants owed a duty to decedent and his parents by virtue of a special relationship arising from their assumption of responsibility to evaluate Kyle's mental state and make an appropriate referral. When a negligence claim is asserted against a municipality, the first issue for a court to decide is "whether the [municipal] entity was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose." Connolly v. Long Island Power Authority , 30 N.Y.3d 719, 727, 70 N.Y.S.3d 909, 94 N.E.3d 471 (2018) quoting Applewhite v. Accuhealth, Inc ., 21 N.Y.3d 420, 425, 972 N.Y.S.2d 169, 995 N.E.2d 131 (2013). "If the municipality's actions fall in the proprietary realm, it is subject to suit under the ordinary rules of negligence applicable to nongovernmental parties." Applewhite v. Accuhealth, Inc. , 21 N.Y.3d at 425, 972 N.Y.S.2d 169, 995 N.E.2d 131 citing Matter of World Trade Ctr. Bombing Litig ., 17 N.Y.3d 428, 446-447, 933 N.Y.S.2d 164, 957 N.E.2d 733 (2011) cert. den. sub nom Ruiz v. Port Auth. of New York & New Jersey , 568 U.S. 817, 133 S.Ct. 133, 184 L.Ed.2d 28 (2012). "A government entity performs a purely proprietary role when its ‘activities essentially substitute for or supplement traditionally private enterprises.’ " Id, quoting Sebastian v. State of New York, 93 NY2d 790, 793 (1999). On the other hand, "a municipality will be deemed to have been engaged in a governmental function when its acts are ‘undertaken for the protection and safety of the public pursuant to the general police powers.’ " Id. Under those circumstances, liability for negligent performance of the governmental function may be imposed only if the government defendant owed a special duty to the injured plaintiff. Drever v. State , 134 A.D.3d 19, 25, 18 N.Y.S.3d 207 (3d Dep't 2015). However, it is not necessary to decide whether a plaintiff has sufficiently established the existence of a special duty when the defendant's liability arises from a proprietary function. Applewhite, supra , 21 N.Y.3d at 427, 972 N.Y.S.2d 169, 995 N.E.2d 131.
This action implicates general questions about the nature and scope of a duty by non-clinicians to prevent suicide on a college campus, and the extent to which a college's policies may create a duty or expand the standard of care beyond what common law principles require. See, Gilson, supra , 5 N.Y.3d at 593, 807 N.Y.S.2d 588, 841 N.E.2d 747, quoting Sherman v. Robinson , 80 N.Y.2d 483, 489 n.3, 591 N.Y.S.2d 974, 606 N.E.2d 1365 (1992) ("Violation of a company's internal rules is not negligent in and of itself, and where such rules require a standard that transcends reasonable care, breach cannot be considered evidence of negligence"). However, the Court limits its review to the parties' arguments concerning whether defendants' conduct was proprietary or governmental and the extent to which defendants assumed a duty to execute SUNY policies.
"Although certain municipal actions have long been held to fall definitively on one side or other of the proprietary/governmental line, ‘this dichotomy is easier to state than to apply in some factual scenarios’ and ‘may present a close question for the courts to decide.’ " Turturro v. City of New York , 28 N.Y.3d 469, 45 N.Y.S.3d 874, 68 N.E.3d 693 (2016) quoting Applewhite , 21 N.Y.3d at 425, 972 N.Y.S.2d 169, 995 N.E.2d 131. Courts examine "the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred." Tara N.P. v. Western Suffolk BOCES , 28 N.Y.3d 709, 713, 49 N.Y.S.3d 362, 71 N.E.3d 950 (2017) (internal citations and quotation omitted). The continuum of responsibility under the proprietary/governmental line begins with the simplest matters where a municipal entity is acting as a landlord with a certain duty to maintain or repair its property and extends to clearer government functions such as maintaining general police and fire protection. Turturro , 28 N.Y.3d at 478, 45 N.Y.S.3d 874, 68 N.E.3d 693 citing Miller v. State , 62 N.Y.2d 506, 511-512, 478 N.Y.S.2d 829, 467 N.E.2d 493 (1984). Certain government functions, such as police and fire protection, constitute "long-recognized, quintessential government functions." Id. quoting Applewhite , 21 N.Y.3d at 425, 972 N.Y.S.2d 169, 995 N.E.2d 131.
In contrast, "the government will be subject to ordinary tort liability if it negligently provides services that traditionally have been supplied by the private sector." Applewhite, 21 N.Y.3d at 426, 972 N.Y.S.2d 169, 995 N.E.2d 131 quoting Sebastian , 93 N.Y.2d at 795, 698 N.Y.S.2d 601, 720 N.E.2d 878. Whether a government agency is acting within a governmental or proprietary capacity turns on the acts or omissions claimed to have caused the injury. Id. citing World Trade Ctr ., 17 N.Y.3d at 447, 933 N.Y.S.2d 164, 957 N.E.2d 733. Here, the alleged omission claimed to have caused injury was the failure by residential life staff to summon police in response to expressions of suicidal ideation by a student residing in an on-campus apartment, where SUNY placed an affirmative duty on defendants to act in accordance with those policies. Providing mental health counseling services is similar to providing medical care, which unquestionably constitutes proprietary conduct subjecting the state (and its employees) to the "same duty of care as private individuals and institutions engaging in the same activity." Schrempf v. State , 66 N.Y.2d 289, 294, 496 N.Y.S.2d 973, 487 N.E.2d 883 (1985) (the state engages in proprietary function when it provides medical and psychiatric care); Sebastian , 93 N.Y.2d at 795, 698 N.Y.S.2d 601, 720 N.E.2d 878 ; Amadon v. State , 182 A.D.2d 955, 582 N.Y.S.2d 539 (3d Dep't) lv den . 81 N.Y.2d 701, 594 N.Y.S.2d 715, 610 N.E.2d 388 (1992).
Like the Court of Claims, this Court finds that assessing suicide risk in an on-campus college student is similar enough to providing clinical evaluation of self-harm threats that it constituted proprietary conduct. While movants are not medical providers or professional counselors, they underwent training in suicide prevention. Muller was charged with interviewing students potentially at-risk of self-harm and then deciding which university services to invoke pursuant to policy guidelines. Those services included outpatient mental health counseling, a proprietary role that is traditionally performed by private enterprises, or summoning police to conduct a more intensive inquiry into alleged threats of self-harm. SUNY residential life staffers were not exercising powers and duties conferred by law for the general well-being of citizens, but instead acted in much the same "gate-keeping" role as counselors or resident assistants at private colleges or universities. Compare Applewhite, supra , 21 N.Y.3d 420, 972 N.Y.S.2d 169, 995 N.E.2d 131 (EMT's employed by FDNY perform classic governmental function even though they provide pre-hospital medical care because they exist for public protection, not as substitute for private enterprise). The Court rejects defendants' contention that Muller was performing a "welfare check" akin to an exercise of police power in response to a call from the public. Thus, the Court finds that defendants acted in a proprietary capacity such that their conduct is subject to ordinary principles of negligence, including that they act reasonably in executing policies designed to prevent students in crisis from acting on expressions of suicidal ideation.
To fully address the parties' contentions and allow for meaningful review, the Court analyzes plaintiffs' alternative argument in opposition to summary judgment: that defendants owed a special duty to decedent and/or his parents. Even assuming arguendo that defendants' conduct was governmental, and subject to "special duty" analysis, the motion record contains sufficient proof of the elements of special duty to require denial of defendants' summary judgment motion. See Coleson v. City of New York , 24 N.Y.3d 476, 483, 999 N.Y.S.2d 810, 24 N.E.3d 1074 (2014) ("[w]hether a special relationship exists is generally a question for the jury" [internal citation omitted] ).
To sustain liability against a municipal defendant for governmental action in a negligence claim, the plaintiff must show: "(1) the plaintiff belonged to a class for whose benefit a statute was enacted; (2) the government entity voluntarily assumed a duty to the plaintiff beyond what was owed to the public generally; or (3) the municipality took positive control of a known and dangerous safety condition." Tara N.P. v. Western Suffolk BOCES , 28 N.Y.3d 709, 714, 49 N.Y.S.3d 362, 71 N.E.3d 950 (2017) quoting Applewhite , 21 N.Y.3d at 426, 972 N.Y.S.2d 169, 995 N.E.2d 131. "The core principle is that to ‘sustain liability against a municipality, the duty breached must be more than that owed the public generally.’ " Id. The facts here implicate only the second situation under which the special relationship may arise: SUNY (and its employees) voluntarily assumed a duty to decedent and other on-campus students to direct potentially suicidal students to a safe environment by implementing the "Save A Life" and "Care Net" programs and training staff to execute them. Notably, unlike a police officer's duty to perform a welfare check upon a stranger, this duty is not owed to the public at large, but instead only to the finite class of on-campus students who depend on residential life staff for other services. Plaintiffs have presented sufficient facts concerning the requisite elements to require jury resolution even if defendants could show that their conduct was governmental in nature. Through SUNY policies, defendants assumed an affirmative duty to act on behalf of decedent and his parents to assess whether he was at immediate risk of self-harm. Defendants acknowledge that inaction in response to expressions of suicidal ideation could result in suicide. Muller had direct contact with decedent in person and spoke with his parents by telephone. Decedent and his parents justifiably relied upon SUNY's affirmative undertaking to assess decedent's mental state, stratify his risk of self-harm, and make the appropriate professional referral where indicated. See Cuffy v. City of New York , 69 N.Y.2d 255, 260, 513 N.Y.S.2d 372, 505 N.E.2d 937 (1987). A jury could rationally find that SUNY's voluntary assumption of the duty to provide services to on-campus students, including assessment of threats of self-harm, extended both to decedent and his parents based on the understanding that Kyle would be assessed and directed to appropriate counseling. Likewise, a jury could find that his parents reasonably relied on alleged assurances from SUNY staff that Muller would assess Kyle, obviating their need to travel to Albany upon learning of Kyle's texts, though a rational jury could also reach a contrary conclusion. Even assuming arguendo that defendants' assessment of Kyle constituted governmental rather than proprietary conduct, fact issues concerning whether SUNY's employees owed a special duty militate against summary judgment dismissing the complaint.
In summary, whether movants' conduct was proprietary or governmental, they have not sustained their burden to establish the absence of legal duty as a matter of law. After finding triable questions of fact concerning the threshold issue of legal duty, the Court also finds material questions of fact concerning defendants' alleged breach of their duty to exercise due care in responding to a student in crisis.
Defendants submitted an expert affirmation from psychiatrist Zvi Klopott, M.D. attesting to his opinion that Muller conducted an appropriate interview of Kyle consistent with SUNY's policy and that "it was not unreasonable for her conclude that he was not a danger to himself." Dr. Klopott's opinions are based in part on reports of Kyle's "normal behavior" and his mood as exhibited to Muller, as well as his conclusion that Kyle habitually used several drugs. Dr. Klopott stated that Muller "was required to make a judgment call based on her training, the guidelines provided by SUNY Albany and the information available to her." However, his opinion that Muller's judgement was reasonable is conclusory, without any explanation or attempt to reconcile (1) the conflicting facts surrounding Kyle's texts that overtly referred to suicidal thoughts, (2) Rogers' interpretation of the SUNY policy that required police notification whenever a suicide threat was expressed orally or in writing, or (3) the fact that Kyle tried to explain away (but did not deny) recent expression of suicidal ideation. After opining that Muller's decision constituted a judgment call based upon training, SUNY guidelines and information available to her, the expert was required to explain why Muller's judgment was reasonable by citing to those sources (or others). As such, defendants' expert affirmation was insufficient to shift the burden to plaintiffs to demonstrate a prima facie case of negligence.
Even assuming defendants shifted the burden to plaintiffs, the expert affidavit of Alan Berman, Ph.D. demonstrates material issues requiring trial. In relevant part, this expert opined that Muller negligently failed to adequately assess Kyle for suicide (by neglecting to review all of the relevant texts messages when she had the opportunity to do so or to delve into the factors outlined in her Save A Life training), failed to appreciate Kyle's attempt to minimize his negative thoughts/behaviors, and failed to timely seek requisite professional intervention. He also criticized Harris' allegedly superficial affirmation of Muller's assessment and plan via a cursory telephone discussion. These criticisms are supported by references to evidentiary facts in the motion record, such that this affidavit suffices to require denial of defendants' motion for summary judgment.
Different jurisdictions have reached varying conclusions about the nature and scope of the standard of care applicable to non-clinician college employees confronted with suicidal students. Specifically, other courts have considered whether a special duty is created when colleges, through "non-clinician" staff, undertake to protect suicidal students from self-harm in the absence of another source of that duty. See Shin v. Massachusetts Inst. Of Technology , 19 Mass. L. Rptr. 570 (2005), 2005 WL 1869101 (2005) ; Schieszler v. Ferrum College , 236 F.Supp.2d 602 (W.D. Va. 2002) ; Jain v. State , 617 N.W.2d 293 (Iowa Sup. Ct. 2000) ; see also Valerie Kravets Cohen, Keeping Students Alive: Mandating On-Campus Counseling Saves Suicidal College Students' Lives and Limits Liability , 75 Fordham Law Review 3081 (2007). The parties do not cite any directly analogous New York precedent defining the duty of college counselors. However, defendants here concede their obligation to adhere to SUNY policies including the "Save A Life" and "Care Net" programs. Both parties have relied upon experts in psychiatry/psychology to define the obligations of "gatekeepers" or "first responders" like Muller and Harris, such that the Court measures their conduct against these sources, despite skepticism that defendants' decisions can be evaluated like medical judgments. But see, Black v. City of Schenectady , 21 A.D.3d 661, 800 N.Y.S.2d 240 (3d Dep't 2005) (whether police officers acted negligently in conducting suicide prevention screening was jury question).
Plaintiffs claim that Muller not only erred in concluding that escalated intervention was not indicated but also that she failed to properly investigate the facts surrounding Kyle's ideation, including thoroughly interviewing Kyle's friends who were present during her first encounter with him. Plaintiffs have demonstrated material issues of fact concerning defendants' comportment with the standard of care (as evidenced by conflicting expert opinions) and comportment with university policies and protocols (as evidenced by conflicting deposition testimony about whether university police should have been summoned to assess decedent).
Specifically, plaintiffs have cited to evidentiary facts in admissible form that support their argument that defendant Muller knew or should have known about expressions of suicidal ideation that required her to call university police pursuant to the guidelines. Viewed in a light most favorable to the non-movants, the discord between Kyle's texts and his explanation of them to Muller could be viewed by a jury as constituting, at the least, inconsistency in the student's expression of suicidal ideation, thereby mandating a report to university police. The conflicting accounts of Kyle's communications with Muller and the inferences that Muller drew from them require resolution by the finder of fact and cannot be determined here as a matter of law. While Muller's explanation of her rationale may indeed persuade a jury that she neither violated university policy nor the applicable standards of care, there are sufficient evidentiary facts to support the competing conclusion that she negligently erred in deciding not to summon university police. Likewise, Harris' obligation as Muller's supervisor arguably required more scrutiny of Muller's rationale and the disposition of her encounter with a potentially suicidal student. While her indirect participation in evaluating Kyle may shield her from liability after a jury considers her defenses, the apparent concession by Rogers that university protocols required police to be summoned (even assuming the accuracy and veracity of Muller's account as memorialized in her contemporaneous note) suffices to create a triable issue of fact concerning the supervisory liability of Harris.
The Court also finds triable issues of fact concerning the cause of decedent's death. Defendants' argument that decedent died from an accidental drug overdose is based upon a speculative, conclusory expert assertion that does not shift the burden of proof on the question to the nonmovants. See , Tkacheff v. Roberts , 147 A.D.3d 1271, 1273 fn. 2, 47 N.Y.S.3d 782 (3d Dep't 2017). Defendants' expert concludes decedent did not intend to harm himself based on decedent's polysubstance abuse and his recent alleged denial of suicidal ideation. Decedent's intentions cannot be explained by the conclusion in the autopsy report nor by his friends' reaction to his apparent intoxication immediately before his death. While decedent's use of drugs including heroin may support the inference of accidental death, this issue cannot be determined a matter of law in light of competing inferences that similarly rely on subjective evidence. A jury may indeed find that accidental death is a more likely explanation than suicide, but this issue cannot be resolved as a matter of law on a record that contains admissible proof of competing theories.
Collateral Estoppel
Finally, the Court must consider the extent to which a determination of the Court of Claims in the companion claim is entitled to preclusive effect here. In opposition to defendants' motion, plaintiffs asserted that this Court should adhere to the findings of the Court of Claims as a matter of "comity." The Court invited counsel to address this issue at oral argument, but it has not been briefed by counsel. For reasons set forth below, the Court declines to give collateral estoppel effect to the decision/order of the Court of Claims, without prejudice to reconsideration of this issue. "[C]ollateral estoppel precludes a party from relitigating ‘an issue which has previously been decided against her in a proceeding in which she had a fair opportunity to fully litigate the point.’ " In Re Dunn , 24 N.Y.3d 699, 704, 3 N.Y.S.3d 751, 27 N.E.3d 465 (2015) quoting Kaufman v. Eli Lilly & Co ., 65 N.Y.2d 449, 455, 492 N.Y.S.2d 584, 482 N.E.2d 63 (1985). Collateral estoppel is a flexible doctrine and "a determination of whether a party had a full and fair opportunity to litigate in the prior proceeding requires a ‘practical inquiry into the realities of the litigation.’ " Id. (internal citations and quotation omitted). "The party seeking to invoke collateral estoppel has the burden to show the identity of the issues, while the party trying to avoid application of the doctrine must establish the lack of a full and fair opportunity to litigate." Id. (internal citation omitted). Under this doctrine, "a party is precluded from relitigating an issue when it was clearly raised in a prior action or proceeding and decided against that party in a final judgment on the merits after a full and fair opportunity to be heard." Rosen v. Kaplan , 161 A.D.3d 1355, 1356, 76 N.Y.S.3d 262 (3d Dep't 2018) (internal quotation marks and citations omitted). When applying the doctrine, the fundamental question is whether relitigation should be permitted in a particular case in light of fairness to the parties, conservation of the resources of the court and the litigants, and the societal interest in consistent and accurate results. Buechel v. Bain , 97 N.Y.2d 295, 304, 740 N.Y.S.2d 252, 766 N.E.2d 914 (2001) (internal quotation and citation omitted). Other courts have applied collateral estoppel where the same transaction is subject to litigation in Supreme Court and the Court of Claims. See, e.g. Becker v. State , 274 A.D.2d 532, 712 N.Y.S.2d 130 (2d Dep't 2000) ; Perez v. State , 33 Misc. 3d 1221, 943 N.Y.S.2d 794 (N.Y. Ct. of Claims 2011) ; Pratt v. State , 181 Misc. 2d. 488, 694 N.Y.S.2d 604 (N.Y. Ct. of Claims 1999).
Here, plaintiffs argue that defendants (who cannot be sued in the Court of Claims) are in privity with the state. "In addressing privity, courts must carefully analyze whether the party sought to be bound and the party against whom the litigated issue was decided have a relationship that would justify preclusion, and whether preclusion, with its severe consequences, would be fair under the particular circumstances." Buechel , 97 N.Y.2d at 304-305, 740 N.Y.S.2d 252, 766 N.E.2d 914. Privity may be found in those whose interests are represented by a party to the prior action. Id. at 304, 740 N.Y.S.2d 252, 766 N.E.2d 914. "Doubts should be resolved against imposing preclusion to ensure that the party to be bound can be considered to have had a full and fair opportunity to litigate." Id. "A nonparty to a prior litigation may be collaterally estopped by a determination in that litigation by having a relationship with a party to the prior litigation such that his own rights or obligations in the subsequent proceeding are conditioned in one way or another on, or derivative of the rights of the party to the prior litigation." D'Arata v. New York Cent. Mut. Fire Ins. Co ., 76 N.Y.2d 659, 664, 563 N.Y.S.2d 24, 564 N.E.2d 634 (1990).
Cognizant of these standards, the Court declines to accord collateral estoppel effect to the Court of Claims' decision denying the state's motion for summary judgment. While the state may be found liable in the Court of Claims for promulgating or implementing negligent policies (and its obligations may derive from defendants' conduct), defendants' rights or obligations are not conditioned on or derivative of the rights of the state. Moreover, while defendants and the state are represented by the same counsel, the Court is not convinced that defendants influence (much less control) the litigation in the companion case in any meaningful way or that, as non-parties, they have the same opportunity to defend their conduct in the Court of Claims. Viewing the practicalities of this litigation, the Court therefore finds that it is premature to accord preclusive effect to the Court of Claims' decision. Other courts have held that denial of a motion for summary judgment does not constitute a determination on the merits sufficient to implicate any doctrine of issue preclusion, further militating against invoking collateral estoppel now. See e.g. Neighborhood Partnership Housing Development Fund v. Blakel Const. Corp. , 34 A.D.3d 303, 303-304, 824 N.Y.S.2d 89 (1st Dep't 2006). This conclusion is without prejudice to further application by any party in the event that a "final determination" is made in the companion claim that satisfies the criteria to invoke this doctrine of issue preclusion. The parties' remaining arguments have been considered and alternatively rendered moot or found lacking in merit. Accordingly, it is hereby ORDERED that defendants' motion for summary judgment is DENIED and it is further ORDERED that plaintiffs' oral application for a finding that this Court should accord collateral estoppel effect to the decision of the Court of Claims denying defendants summary judgment is DENIED WITHOUT PREJUDICE .
For example, defendant Harris' liability may be assessed differently than Muller's conduct given Harris' attenuated role. The state does not have the same incentive to distinguish Harris' conduct from Muller's conduct, or even to distinguish negligent policies from negligent implementation of polices because those distinctions are not determinative of the state's liability. Additionally, defendants may be entitled to ask for apportionment of fault, if any, between them in Supreme Court.
SO ORDERED .