Consumer Finance Litigation

In Surloff v. Regions Bank, et al., No. 4D14-842, 2015 WL 7275207 (Fla. 4th DCA Nov. 18, 2015), the Fourth District Court of Appeal of Florida was faced with the issue of whether Regions Bank (the "Bank") had any duty or "special relationship" with its client that would subject the Bank to liability for its client's suicide. The issue arose after the trial court granted the Bank's motion to dismiss Plaintiff Cheri Surloff's (as personal representative of the Estate of Arthur B. Surloff) (the "Plaintiff") claims of negligent undertaking and negligent infliction of emotional distress against the Bank and its Senior Vice President ("SVP"). The facts as alleged in the complaint provided that the decedent suffered from mental and physical impairments which precluded him from being able to process complex information. The decedent and members of his family went to the Bank to discuss a mortgage loan. The decedent's family members informed the Bank 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 the Bank not contact the decedent, except with regard to administrative matters. The Bank's representative agreed to the family's terms and continually reaffirmed their commitment not to contact the decedent. Thereafter, the decedent received a correspondence mistakenly sent by the Bank that informed him his loan was denied. When the decedent's family learned of this they again told the Bank not to communicate with the decedent regarding the loan. Representatives from the Bank met with the decedent's doctor, who warned the Bank of the decedent's fragile condition and likelihood that the decedent could self-inflict mental and physical harm. Despite the repeated requests and warnings, SVP continued to contact the decedent. Upon discovering that SVP spoke with decedent, the Bank informed SVP not to contact the decedent. However, two days later, SVP told decedent that his loan was denied. Upon learning of this information, the decedent went to a motel and ingested a large amount of mediation, which resulted in the decedent's death three days later. Upon granting the Bank and SVP's motion to dismiss with prejudice, the trial court held that neither the Bank nor SVP owed decedent any duty of care. The trial court reasoned that the Bank never had any knowledge the decedent would commit suicide and therefore no nexus existed between the Bank and SVP and the decedent's suicide. The appellate court analyzed the jurisprudence regarding liability for another's suicide. 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). Additionally, a legal duty requires more than just foreseeability alone. Aguila v. Hilton, Inc., 878 So. 2d 392, 396 (Fla. 1st DCA 2004). A duty requires one to be in a position to "control the risk." Id. Thus, for example, psychiatric facilities 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. The appellate court relied upon the above Florida jurisprudence to determine whether the Bank and SVP owed the decedent a specific duty of care to prevent the decedent from committing suicide. The appellate court acknowledged that the Bank knew of decedent's mental condition and agreed to withhold complex information from the decedent. However, the Bank could not undertake a duty to prevent the decedent's suicide because the decedent was not in the Bank'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."). Plaintiff contended that because the Bank and SVP voluntarily assumed to handle the loan without contacting the decedent about substantive financial issues, the Bank and SVP thereby owed a duty of reasonable care to the decedent. In addition, Plaintiff claimed the Bank and SVP knew or should have known that communicating with the decedent directly and informing him that the loan was denied would cause severe emotional trauma and distress. As a result, Plaintiff argued the Bank and SVP's breach of their duty caused the decedent severe emotional distress that ultimately resulted in the decedent's death. Plaintiff's counsel heavily relied upon 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 of a cruise ship committed suicide and his widow brought a wrongful death action. The appellate court noted that Rafferman applied federal maritime law, which provides that a ship owner has a duty to prevent the foreseeable, self-inflicted injury of the ship's crew. See Rafferman, 659 So. 2d at 1273. The appellate court recognized the different relationship that banks have with their clients when compared to the relationship between ship owners and their seaman. 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. The appellate court held that because the Bank had no duty or "heavy responsibility" to the decedent by virtue of their relationship, it therefore was not necessary to even address whether the decedent's suicide was foreseeable. See Rafferman, 659 So. 2d at 1272-73. While the appellate court dismissed this action based upon negligent undertaking and negligent infliction of emotional distress, financial institutions and their employees need to take precautionary measures to ensure that no special duty of care is ever established with their customers.