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Change This Law? Employee Suicide Bars Recovery From Employer

By William Peacock, Esq. on January 04, 2013 | Last updated on March 21, 2019

Devin Bailey had a long battle with mental illness before his death. He dropped out of college due to recurrent depression, was kicked out of the Navy due to psychosis, and was admitted to mental facilities for treatment of bipolar disorder with "[p]sychotic [f]eatures." He was also taking anti-psychotic medications and had a pending case for kicking a police officer and possessing an eight inch knife during a domestic disturbance.

In September 2008, he applied for a position as an armed security guard with Wackenhut Services, Inc., which provides contracted security to the federal government. Despite a background check that reflected the pending criminal charges, they hired him. They also failed to obtain his military records. Once he passed the firearm test, he was handed a gun and sent to work.

He committed suicide at the job site on December 9, 2008, mere weeks after graduating Wackenhut's training program.

The general rule is that one may not recover damages under a theory of negligence for the suicide of another - suicide is an intervening act that precludes a finding of responsibility. There are two exceptions: the irresistible impulse and the special duty.

The irresistible impulse exception applies when the defendant's conduct puts the victim in a position where he could not have decided against, or refrained from, killing himself.

The special duty exception is where the relationship between the defendant and victim deprives the victim of his normal opportunities for protection. Examples cited by the court include hospitals and jails.

Bailey's mother conceded that this case didn't fall within the traditional view of the first exception (though one might argue that putting a loaded gun in a mentally ill person's hands nearly arises to enabling an irresistible impulse).

Instead, she tried to argue that the faulty background check process and employment relationship should meet the second exception. The court was not convicted, stating that her argument, "extends the special relationship exception far beyond its moorings."

She also tried to argue for a new exception based on negligent distribution of firearms - her son almost certainly would have been prohibited from owning a gun under federal law. The D.C. Circuit had not yet addressed such a case, though other courts had and their answers, while mostly negative for the plaintiff, were not dispositive.

Alas, the panel refused to recognize such an exception, citing other circuits' decisions in similar cases and the D.C. Circuit's long-standing rule that suicide breaks the chain of causation in a negligence action.

Perhaps the sole positive to come from the case is that two courts have now explicitly admonished the employer. "Rollins's allegations raise serious questions about the diligence and care with which Wackenhut performs background checks on the employees to whom it provides firearms."

Still, public-shaming aside, what good is an admonishment without liability to back it up? Shouldn't there be liability for a company that negligently provides a company firearm to a mentally ill man which is then used for disastrous purposes - towards himself or others?

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