Killen v. Independent School District No. 706

MANSUR, Judge

(concurring in part, dissenting in part).

I concur with the majority’s decision that the school district is entitled to discretionary function immunity with respect to its failure to adopt a suicide prevention policy. I do note, however, that two separate and distinct decisions are involved here: the first is the failure to adopt a written suicide prevention policy, and the second is the school district’s delegation of decisions involving suicidal students to its guidance counselors.

I respectfully dissent on the issue of whether Fabish (and the school district vicariously) is entitled to official immunity for the decision not to notify Jill Dibley’s parents that she had expressed suicidal ideations. Again, I believe that the challenged conduct encompassed at least two distinct decisions: the first involved the formulation of guidelines for determining when parental notification was necessary, and the second involved the implementation of that policy in this case.

With respect to the first decision, it is clear that Fabish was performing a duty that had been delegated to him by the school district. That duty was somewhat defined by the student and faculty manuals, which outlined various procedures to deal with student problems and often involved parental notification. Fabish himself further defined the duty when dealing with possibly suicidal students as “to determine the veracity of the student’s intentions and if further intervention is necessary.” Fabish outlined the factors that he considered before involving a student’s parents or referring a student for professional help: he first determined whether the situa*118tion was “serious enough,” and then determined whether the student’s health and well-being outweighed his concern for the student’s privacy needs. I believe that the policy Fabish followed regarding when to notify parents was clearly made at an operational level and is entitled to official immunity. See Olson v. Ramsey County, 509 N.W.2d 868, 371-72 (Minn.1993) (social worker entitled to official immunity for making and formulating case plan, which involved professional planning at operational level, but not for implementing that plan, which involved execution of assigned, ministerial tasks); Larson v. Independent Sch. Dist. No. 314, 289 N.W.2d 112, 120-21 (Minn.1979) (while decision for physical education instructor to teach headspring may have been made at policy-level, decisions involving manner in which instructor taught headspring were ministerial).

Fabish’s implementation of that policy, however, was ministerial in nature and thus not entitled to official immunity. I do not believe that Fabish’s day-to-day decisions regarding Jill Dibley involved the exercise of significant, independent judgment or required the balancing of policy choices. Cf. Terwilliger v. Hennepin County, 542 N.W.2d 675, 679-80 (Minn.App.1996) (county mental health care workers not entitled to discretionary function immunity for manner in which they administered treatment once decision to treat had been made), review granted (Minn. Apr. 1,1996).

Nor do I believe that imposing liability for these decisions would hamper guidance counselors in their ability to work with students. While guidance counselors must be afforded some degree of discretion, that discretion is not unbounded and must be cautiously exercised when dealing with possibly suicidal students. Given the special status and protection that the law affords students and the gravity of decisions involving suicidal students, I believe that Fabish’s failure to notify the Dibleys is not entitled to official immunity. See Larson, 289 N.W.2d at 120 (because of schoolchildren’s special status and because headspring required advanced gymnastic skills, decisions made by teacher in spotting headspring not entitled to immunity).

In addition, I believe that Fabish and the school district vicariously owed a duty to Jill Dibley in this case. The facts of this case distinguish it from Donaldson v. YMCA, 539 N.W.2d 789, 793 (Minn.1995), in which the supreme court held that a lodging house owed no duty to a resident who committed suicide in her room.

In Donaldson, the supreme court noted that while a person has no legal duty to act for another’s protection, a special relationship may give rise to such a duty when an institution such as a hospital or jail has physical custody or control over the person to be protected. Id. at 792. The institution’s personnel must also have special training and experience in recognizing suicidal tendencies and have special knowledge of the person’s suicidal tendencies. Id. at 793. In order to establish the requisite degree of dependence and control, the institution must be in a position to protect the person from committing suicide and to deprive the person of normal opportunities for self-protection, and the person must have some reasonable expectation that the institution will protect her from committing suicide. Id.

Similar to these types of institutions, the school district had substantial physical custody and control over its students, including Jill Dibley. While the school district had little control over Jill Dibley’s actions when she was at home, it exercised substantial control over her while she was at school. In addition, school district employees had special training and experience in recognizing suicidal tendencies. Those employees had special or actual knowledge of Jill Dib-ley’s suicidal tendencies, as evidenced by her essay, the telephone call another counselor received from one of Jill Dibley’s friends regarding a suicidal letter Jill Dibley had written, and Jill Dibley’s conversations with Fabish in September 1993 and again on January 7, 1994. Finally, following the Dibleys’ September 1993 conversation with Fabish in which he reported Jill Dibley had discussed suicide and in which he indicated he would be “in touch,” the Dibleys could reasonably assume that Fabish would again notify them if their daughter expressed fur*119ther suicidal ideations while at school. Under these circumstances, I believe that public policy warrants finding that some duty was owed at least to notify Jill Dibley’s parents of her suicidal thoughts and ideations. See Eisel v. Board of Educ., 324 Md. 376, 597 A.2d 447, 456 (1991) (school counselors have duty to use reasonable means to attempt to prevent suicide when on notice of student’s suicidal intent).

I would therefore reverse the grant of summary judgment to Fabish and remand the matter to the district court for trial.