Rose Cleveland , individually v. Michael Rotman

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 01-2488 & 01-2958
R OSE C LEVELAND , individually and in her capacity as
executrix of the estate of Robert Cleveland, Esquire,
deceased,
Plaintiff-Appellant,
v.
M ICHAEL R OTMAN ,
Defendant-Appellee.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 C 424—John Grady, Judge.
____________
A RGUED M AY 14, 2002—D ECIDED J ULY 17, 2002
____________
Before C OFFEY , M ANION , and E VANS , Circuit Judges.
E VANS , Circuit Judge. Rose Cleveland is executrix of the
estate of her late husband, Robert Cleveland, who commit-
ted suicide in 1998. Cleveland alleges that events surround-
ing 15 years of tax collection proceedings caused her hus-
band severe depression and led to his suicide. She filed a
four-count suit on the estate’s behalf against the Internal
Revenue Service, an IRS officer, and her husband’s tax
attorney, Michael Rotman. We address only the claims
against Rotman, which are for legal malpractice sounding
in contract and tort. Cleveland’s estate appeals from the

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2 Nos. 01-2488 & 01-2958
district court’s dismissal for failure to state a claim for
which relief can be granted under Federal Rule of Civil
Procedure 12(b)(6).
We review de novo the district court’s grant of a motion to
dismiss under Rule 12(b)(6). See Help At Home, Inc. v. Med-
ical Capital, L.L.C., 260 F.3d 748, 752 (7th Cir. 2001). In
doing so, we accept all well-pleaded factual allegations in
the plaintiff’s complaint as true and draw all reasonable
inferences in the plaintiff’s favor. We will affirm the dis-
missal if it appears beyond doubt that the plaintiff cannot
prove any set of facts entitling it to relief.
In the late 1960’s, Robert Cleveland, who was an attor-
ney, became involved in a dispute with the IRS over a tax
issue. The tax proceedings stretched over 15 years, involv-
ing multiple trials and appeals. Cleveland’s estate alleges
that the IRS engaged in a campaign of unauthorized activ-
ities that stripped Cleveland of all assets and income. Un-
able to pay his legal bills and the interest and penalties
that the IRS assessed (which totaled $250,000), Cleveland
went into debt. Starting in 1991, the IRS confiscated Cleve-
land’s social security income. The estate also alleges that
the IRS levied on money that Cleveland obtained in a set-
tlement for one of his law clients, causing the client to wait
for years to receive his settlement money. The estate alleges
that this is “one example of how . . . the IRS caused Mr.
Cleveland to get disbarred from practicing law in Illinois.”
The tax dispute caused Cleveland to suffer severe depres-
sion. As a result, Cleveland’s therapist informed the IRS in
writing that Cleveland was suicidal.
In 1996 Cleveland retained Rotman for advice in resolv-
ing the tax dispute. At the time, Cleveland’s therapist in-
formed Rotman of Cleveland’s poor financial status, his
severe depression, and his suicidal tendencies. Rotman ad-
vised Cleveland that he needed to file tax returns for a 10-
year period, but Cleveland claimed that he was unable to

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Nos. 01-2488 & 01-2958 3
calculate his income and expenses for this period because
his financial records had been lost during office moves and
discarded by others during divorce proceedings (involving
a different wife, not Rose). As a result, it is alleged that Rot-
man told Cleveland to estimate his income and expenses for
the relevant years.
Apparently, Cleveland’s estimates did not agree with IRS
figures, and although the IRS had previously declared
Cleveland’s account uncollectible, it decided to audit him
again. It notified Cleveland of the impending audit in Feb-
ruary 1997. Because she was concerned over Cleveland’s
suicidal depression, Cleveland’s therapist intervened and
succeeded in postponing the audit until January 1998. On
January 26, 1998, shortly before the audit was scheduled to
take place, Cleveland shot himself in the head at home in
his wife’s presence. He was 74 years old.
Cleveland’s estate alleges that Rotman committed mal-
practice, which triggered the IRS’s proposed 1998 audit,
which in turn triggered Cleveland’s suicide. The estate ar-
gues that the district court erred in ruling that, as a matter
of law, a plaintiff’s allegations were insufficient under Rule
12(b)(6).
A plaintiff may style a claim for legal malpractice as ei-
ther a tort or contract claim. See Collins v. Reynard, 154 Ill.
2d 48, 50 (1992). Under either a tort or contract theory, the
elements of a legal malpractice claim are (1) an attorney-
client relationship establishing a duty on the attorney’s
part, (2) breach of that duty, (3) proximate cause establish-
ing that but for the breach the plaintiff would not have been
injured, and (4) resulting damages. See Radtke v. Murphy,
312 Ill. App. 3d 657, 662 (2000); Serafin v. Seith, 284 Ill.
App. 3d 577, 586-87 (1996); Coughlin v. SeRine, 154 Ill.
App. 3d 510, 514 (1987).
It is well-established under Illinois law that a plaintiff
may not recover for a decedent’s suicide following a tortious

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4 Nos. 01-2488 & 01-2958
1 Cleveland’s estate argues, however, that foreseeability is a ques-
tion of fact, not of law, and therefore that the district court erred
in not allowing the question to go to a jury. The estate cites to City
of Streator v. Industrial Commission, 92 Ill. 2d 353, 363 (1982),
and Harper v. Industrial Commission, 24 Ill. 2d 103, 110 (1962).
These cases are inapplicable because they dealt with worker’s
compensation claims. Because the worker’s compensation stat-
utory scheme was designed to replace common law, legal caus-
ation is irrelevant, and only factual causation need be established.
See In re Estate of Dierkes, 191 Ill. 2d 326, 331 (2000). Therefore,
the estate’s reliance on these cases is misplaced because they were
not decided under the common law of tort or contract.
act because suicide is an independent intervening event
that the tortfeasor cannot be expected to foresee. See Kleen
v. Homak Mfg. Co., 321 Ill. App. 3d 639, 640 (2001); Moss by
Moss v. Meyer, 117 Ill. App. 3d 862, 864 (1983); Jarvis v.
Stone, 517 F. Supp. 1173, 1175 (N.D. Ill. 1981); Little v.
Chicago Hoist & Body Co., 32 Ill. 2d 156, 158-59 (1965);
Stasiof v. Chicago Hoist & Body Co., 50 Ill. App. 2d 115, 122
(1964). The district court found this rationale equally ap-
plicable in the contract context and therefore dismissed the
estate’s claims arising from Cleveland’s suicide. 1
We agree with the district court that Cleveland’s suicide
was an independent intervening event that broke the chain
of causation from Rotman’s alleged malpractice to Cleve-
land’s death. Cleveland was an adult, and the estate has
not alleged that he was mentally unstable. See Kleen, 321
Ill. App. 3d at 643; Jarvis, 517 F. Supp. at 1175 (recognizing
exception to suicide rule where, as proximate result of a
head injury caused by tortfeasor’s negligence, victim be-
comes “insane and bereft of reason” and commits suicide as
a result). Therefore, we assume that Cleveland was a com-
petent adult who clearly understood what he was doing and
intentionally took his own life. Moreover, Cleveland’s estate
fails to establish that Rotman breached a duty to Cleveland,

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Nos. 01-2488 & 01-2958 5
or that Rotman’s alleged negligence proximately caused
Cleveland’s suicide.
Essentially, Cleveland’s estate seeks to impose on Rotman
a duty to foresee and avoid a client’s suicide. Although an
Illinois court imposed such a duty on a psychiatrist who
knew of his patient’s history of suicidal depression and yet
failed to protect the patient from self-harm, see Winger v.
Franciscan Med. Ctr., 299 Ill. App. 3d 364, 371-72, 375
(1998), the estate here points to no case law extending such
a duty to the attorney-client context. Because of the differ-
ences between the psychiatrist-patient relationship and the
attorney-client relationship, we see no justification for
extending such a duty to attorneys. Psychiatrists are health
care professionals trained to care for their patients’ mental
and emotional health. By contrast, attorneys are medical
laypeople who cannot be reasonably expected to anticipate
the mental health consequences of their legal advice.
Whether Rotman had a duty to prevent Cleveland’s sui-
cide depends on the suicide’s foreseeability, its likelihood,
the magnitude of the burden of guarding against it, and the
potential consequences of placing that burden on Rotman.
See Collins, 154 Ill. 2d at 51. As we just noted, because Rot-
man was not a medical professional, he could not have
reasonably been expected to foresee that his allegedly erro-
neous advice would drive Cleveland to suicide. Cleveland’s
estate urges, however, that Rotman should have foreseen
that bad tax advice could drive Cleveland to suicide because
he knew that Cleveland was suffering from severe depres-
sion triggered by his tax woes. Nonetheless, based on his
lack of psychological training, Rotman cannot have reason-
ably been expected to foresee Cleveland’s suicide.
Additionally, suicide is generally not a likely result of bad
tax advice, especially when that advice concerns the rela-
tively routine matter of filing tax returns. By the time
Cleveland retained Rotman, the tax dispute had been going

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6 Nos. 01-2488 & 01-2958
on for 15 years, and Cleveland was already suffering from
severe depression. In the context of the entire series of
events arising from Cleveland’s IRS dispute, Rotman’s
allegedly erroneous advice was not more likely than any of
the other events to cause Cleveland’s suicide.
Moreover, the magnitude of placing the burden on an at-
torney to foresee and prevent a client’s suicide is very great.
Attorneys cannot reasonably be expected to screen potential
clients for suicidal tendencies. Imposing such a burden
would expose attorneys to an unreasonable risk of liability,
which would ultimately deprive visibly depressed people of
competent legal advice. Therefore, Cleveland’s estate fails
to establish that Rotman had a duty to foresee and avoid
Cleveland’s suicide.
Even assuming that Rotman had such a duty, the estate
fails to show that Rotman’s allegedly erroneous advice prox-
imately caused Cleveland’s suicide. A proximate cause is
one that produces an injury through a natural and continu-
ous sequence of events unbroken by any effective interven-
ing cause. See Kleen, 321 Ill. App. 3d at 641. Proximate
cause is composed of two elements: legal cause and cause
in fact. Legal cause exists where the injury was of a type
that a reasonable person would foresee as a likely result of
his or her conduct. See id. at 642.
As we’ve noted, it was not reasonably foreseeable that
Cleveland’s suicide was a likely result of Rotman’s advice.
Additionally, the timing of events weakens the proximate
cause argument. Rotman advised Cleveland to file esti-
mated tax returns in 1996. The IRS notified Cleveland of its
intended audit in February 1997. Cleveland did not commit
suicide until almost a year later, in January 1998. Even
assuming that Rotman’s allegedly erroneous advice precipi-
tated the audit, Cleveland was aware of the impending
audit for almost a year before taking his life. Given the sig-
nificant time lapse between the alleged triggering event and

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Nos. 01-2488 & 01-2958 7
Cleveland’s suicide, as well as Cleveland’s history of de-
pression, which had its origins in events that preceded his
relationship with Rotman—including the loss of his legal
practice, his disbarment, the confiscation of his assets and
income, and his mounting debt—Cleveland’s suicide did not
follow Rotman’s advice through a natural and continuous
sequence of events unbroken by any effective intervening
cause. Therefore, Rotman’s allegedly erroneous advice did
not proximately cause Cleveland’s suicide. Thus, the district
court correctly held that the estate cannot recover for
Cleveland’s suicide.
The estate also argues that the district court erred in
holding that a claim for Cleveland’s emotional distress aris-
ing from Rotman’s malpractice did not survive Cleveland’s
death. The Illinois Survival Act provides that actions to re-
cover damages for injury to the person, except actions for
slander and libel, survive death. See ILCS 5/27-6. Early in-
terpretations of the act held that only actions for physical
damages, not emotional damages, survived death. Courts
now view the act as a remedial statute that is to be con-
strued liberally to avoid abatement. See Owens v. Archer-
Daniels-Midland Co., 30 F. Supp. 2d 1082, 1084 (C.D. Ill.
1999); Walter v. Board of Educ. of Quincy Sch. Dist. No.
172, 93 Ill. 2d 101, 108 (1982).
Given that Illinois courts liberally construe the survival
act, it’s possible that an action for negligent infliction of
emotional distress survives death. We express no opinion on
this subject, however, because we find that Cleveland’s
estate failed to state such a claim. This is so because Illinois
follows the “impact rule,” which allows a plaintiff to recover
for negligent infliction of emotional distress only if the dis-
tress is directly and causally related to a physical injury.
See In re Aircrash Disaster Near Roselawn, Ind. on Oct. 31,
1994, 948 F. Supp. 747, 750 (N. D. Ill. 1996); Allen v. Otis
Elevator Co., 206 Ill. App. 3d 173, 178 (1990); Braun v. Cra-

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8 Nos. 01-2488 & 01-2958
2 Although the Illinois Supreme Court partially replaced the im-
pact rule with a “zone-of-danger” rule for plaintiffs who were by-
standers to negligent acts that subjected them to a high risk of
physical impact, see Rickey v. Chicago Transit Auth., 98 Ill. 2d 546
(1983), later cases hold that Rickey did not completely replace
the impact rule. See Corgan v. Muehling, 143 Ill. 2d 296, 305-06
(1991) (holding that Rickey did not alter impact rule for negligence
plaintiffs who were not bystanders); Pasquale v. Speed Prod.
Eng’g, 166 Ill. 2d 337, 350 (1995) (holding that Rickey did not alter
impact rule for bystander plaintiffs in strict liability cases).
ven, 175 Ill. 401, 420 (1898). 2 Here, the estate did not allege
that Rotman’s negligence caused Cleveland a physical in-
jury that directly caused his emotional distress. Therefore,
regardless of whether an action for negligent infliction of
emotional distress could survive Cleveland’s death, his es-
tate fails to state such a claim.
The estate’s next argument is that the district court erred
in dismissing its claim for financial damages because the
estate failed to plead damages with specificity. Cleveland’s
estate alleges that, by triggering the IRS audit, Rotman’s
allegedly erroneous tax advice caused Cleveland to lose his
social security income. Yet, the estate’s complaint also al-
leged that the IRS began confiscating Cleveland’s social
security income in 1991, 5 years before Rotman was re-
tained to give tax advice. Additionally, Cleveland’s estate
failed to allege how the impending IRS audit resulted in
other financial damages. Therefore, because the estate
failed to allege an adequate factual basis for its damages
claim, the district court properly dismissed it.
In a related claim, Cleveland’s estate argues that the dis-
trict court should have allowed it to amend the complaint to
include more facts concerning the financial damages claim.
The estate does not allege that it actually filed a motion to
amend the complaint in this regard, nor does the record
reflect that the estate filed such a motion. Where a plaintiff

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Nos. 01-2488 & 01-2958 9
does not move to amend, the district court is under no
obligation to amend the complaint sua sponte. See Bank of
Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185,
1192 (7th Cir. 1990). Therefore, the district court did not err
in dismissing the estate’s complaint without allowing the
estate to amend its factual allegations regarding economic
damages.
A FFIRMED .
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—7-17-02

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