¶1concurring in part and dissenting in part.
¶2I concur in parts I, II A-B, III A-B-C and dissent from IV A-B, and V for the reasons hereinafter stated.
¶3I.
¶4RESTATEMENT OF DUTY OF SCHOOL DISTRICT UNDER PREVIOUS CASE LAW
¶5The majority has stated in part III C that “under our previous case law we have determined that a school district has a duty, exemplified in I.C. § 33-512(4), to act affirmatively to prevent foreseeable harm to its students” (emphasis added). As emphasized in Eisel v. Board of Education, 324 Md. 376, 597 A.2d 447 (1991), foreseeability is the most important variable in determining whether a tort duty exists, and without it there can be no duty to prevent suicide. “The broad test of negligence is what a reasonably prudent person would foresee and would do in the light of this foresight under the circumstances.” 57A Am.Jur. 194, Negligence § 135.
¶6II.
¶7WHAT NOTICE DID LOGAN HAVE THAT JEFF WAS CONTEMPLATING SUICIDE?
¶8The only notice that Logan could have had that Jeff was contemplating suicide must be based upon the contents of Jeffs journal. There is an issue of fact whether Logan read this journal. Therefore, this Court must assume that Logan did read Jeffs journal. Thus, this Court must consider what notice was imparted to Logan from her assumed reading of Jeffs journal. The following excerpts are the only entries in Jeffs journal that make any reference to death or depression by Jeff that could arguably relate to Jeff committing suicide.
Well, Edgar Allen poe, I can live with studying about that stuff he wrote especially the one short story about the evil eye. We read that one last year in English class. I really enjoy poems and short “Horror” storie’s. I used to write poems until I pronounced myself dead in one of them and how could I write poems or stories if I was dead??
Really, though, it was accidental that it happened, see, I went into a medium depression and wrote poems to two special people in my life. They were both girls but, anyway, I told them that it was too bad that I had to say goodby this way like that but, it would be the only way and I felt better. I still have those two poems in case I change my mind.
I don’t know if I will. I met some old friends recently so I’m here for awhile. I know that you may not be following all this because I really haven’t come out right out and said what I meant and since it’s a little far fetched. Not many people follow me because I’m so original but, who cares!?!!?
11/6 & 11/7/90
... Some of the things in here which are written have strong emotional standings. There are things that could kill someone ____
¶10The rest of Jeffs journal entries vaguely dealt with his problems in writing, his having a “crush” on a girl, some of his personal characteristics, his relationship with his parents, what he expected to receive for Christmas, and his collecting of “unusable or interesting stuff.”
¶11In determining whether there is an issue of fact whether Logan knew or should have known that Jeff was contemplating suicide on the basis of his journal entries, one’s duty of care must be determined upon the facts as they appeared at the time, and not by the fact that Jeff committed suicide. 37A Am. Jur.2d 195-97, Negligence § 136. Therefore, the significance, if any, of the quoted portions of Jeffs journal must not be based on the fact that Jeff committed suicide.
¶12The general rule dealing with the issue of the liability of a person for the suicide of another was stated in McLaughlin v. Sullivan, 123 N.H. 335, 461 A.2d 123 (1983), as follows:
As a general rule, negligence actions seeking damages for the suicide of another will not lie because the act of suicide is considered a deliberate, intentional and intervening act which precludes a finding that a given defendant, in fact is responsible for the harm, (citations omitted).
¶13The McLaughlincourt also recognized that two exceptions to this general rule have been recognized. The exception to the general rule that has possible application under the facts of this ease was stated in McLaughlinas follows:
The second exception focuses on the existence of a specific duty of care to prevent suicide. This duty has been imposed as a matter of law (citation omitted), on essentially two classes of defendants, both of whom are held to have a special relationship with the suicidal individual. The typical defendant in such cases “is someone who has a duty of custodial care, is in a position to know about suicide potential, and fails to take measures to prevent suicide from occurring.” Comment, 1978 Ariz.St.L.J. at 581. Specifically this duty has been imposed on: (1) institutions such as jails, hospitals and reform schools, having actual physical custody of and control over persons (citations omitted); and (2) “persons or institutions such as mental hospitals, psychiatrists and other mental-health trained professionals, deemed to have a special training and expertise enabling them to detect mental illness and/or the potential for suicide, and which have the power or control necessary to prevent that suicide.” (emphasis added) (citations omitted).
¶14This exception to the general rule raises the question whether Logan, who was a high school English teacher, had the special training and expertise which would enable her to determine whether Jeff was mentally ill and/or contemplating suicide on the basis of his journal entries.
¶15A. Logan’s Training as an English Teacher Did Not Enable Her to Determine Whether Jeff Was Mentally Ill and/or Contemplating Suicide.
¶16Courts have consistently refused to hold that someone who is not a psychiatrist or mental-health trained professional who has had special training and expertise enabling them to detect mental illness and/or the potential for suicide has a duty to prevent suicide from occurring. See McLaughlin, 461 A.2d 123 (1983) (lawyers do not have either the expertise or training necessary to judge or foresee that a client will commit suicide or to fashion appropriate responses to such a risk); Bogust v. Iverson, 10 Wis.2d 129, 102 N.W.2d 228 (1960) (professor of education with a doctor of philosophy degree is not a person qualified as a medical doctor or a specialist in mental disorders that enabled him to realize need for student’s psychiatric treatment or need to advise parents of emotional disturbances); Eisel v. Board of Education, 324 Md. 376, 597 A.2d 447 (1991) (student’s counselors had duty to warn student’s parents of their daughter’s suicide threats which were made to friends and reported by them to counselors even though daughter denied making such statements to the counselors).
¶17The distinguishing factual difference between Eisel, where a duty was found to exist, *494and McLaughlinand Bogust, where no duty was found to exist, is that in Eiselthere was direct evidence that suicide was planned by the decedent in question and there was no need for special training to foresee that the decedent intended to commit suicide; while in McLaughlinand Bogust, the suicide was held to be unforeseeable and no duty to take affirmative action to prevent suicide existed because each of the defendants lacked the special training required to detect mental illness and/or the potential for suicide to foresee that the deceased intended suicide.
¶18Under this authority and reasoning, the suicide of Jeff should be held to be unforeseeable by Logan and that she had no duty to take any affirmative action to prevent his suicide because of her lack of special training to detect mental illness and/or the potential for suicide of Jeff.
¶19B. No Evidence Has Been Submitted Which Raises an Issue of Fact Whether Logan Knew or Should Have Known From Jeffs Journal Entries That He was Mentally Ill and/or Contemplating Suicide.
¶20The appellants tacitly acknowledge that the determination of whether Jeff was mentally ill and/or contemplating suicide is a medical issue which could only be determined by mental-health trained professionals by obtaining the services of Dr. Read, who is a psychologist with special training and expertise to enable him to detect mental illness and/or the potential for Jeff to commit suicide.
¶21However, Dr. Read did not make his diagnosis on the basis of Jeffs journal entries alone. He also conducted clinical interviews of James and Diane Brooks. See Dr. Read’s affidavit, para. 3. Thus, his opinion is not based upon the facts as they appeared at the time Jeff submitted his journal to Logan. Furthermore, there is no way of knowing how much Dr. Read’s diagnosis is based upon his after-the-fact knowledge that Jeff had committed suicide.
¶22Dr. Read’s diagnosis that Jeff was “suffering from fairly common adolescent turmoil surrounding a girl friend, his identity and issues of rebellion,” standing alone, is meaningless in the sense that there are probably times when every adolescent could be similarly diagnosed. Furthermore, this diagnosis does not indicate in any way how Logan, as a high school English teacher, could be expected to determine that Jeff was mentally ill and/or contemplating suicide on the basis of Jeff’s journal entries.
¶23Dr. Read’s statement that “had Jeffrey Brooks been timely referred to a competent professional counselor or psychologist, ... his suicide would have been avoided,” is pure speculation that should not be relied upon as raising any factual issue in this case.
¶24We can reasonably assume that Jeff had suicidal thoughts because he committed suicide. However, there is no evidence in the record when he had those suicidal thoughts or that those suicidal thoughts were communicated to Logan. One may suspect, question or speculate whether Jeff was making reference to some prior suicidal thoughts in the quoted excerpts from his journal. However, those statements alone are not admissible evidence that he was having suicidal thoughts at the time he wrote them in his journal.
¶25III.
¶26CONCLUSION
¶27As the trial court stated in Bogust:
To hold that a teacher who has had no training, education or experience in medical fields is required to recognize in a student a condition the diagnosis of which is in a specialized and technical medical field would require a duty beyond reason.
¶29On the basis of the foregoing reasoning and authorities,.! would affirm the action of the district court in granting summary judgment in favor of the defendants.