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SJC-12329

 DZUNG DUY NGUYEN, administrator,1 vs. MASSACHUSETTS INSTITUTE
                    OF TECHNOLOGY & others.2



          Middlesex.     November 7, 2017. - May 7, 2018.

   Present:   Gants, C.J., Gaziano, Lowy, Cypher, & Kafker, JJ.


Wrongful Death. Negligence, Wrongful death, College. Damages,
     Wrongful death, Conscious pain and suffering, Breach of
     contract. Practice, Civil, Amendment of complaint.
     Workers' Compensation Act, Exclusivity provision.



     Civil action commenced in the Superior Court Department on
September 6, 2011.

     The case was heard by Bruce R. Henry, J., on motions for
summary judgment.

     The Supreme Judicial Court granted an application for
direct appellate review.


     Jeffrey S. Beeler for the plaintiff.
     Kevin P. Martin (Yvonne W. Chan also present) for the
defendants.
     Alan D. Rose, B. Aidan Flanagan, & Antonio Moriello, for
Amherst College & others, amici curiae, submitted a brief.

    1   Of the estate of Han Duy Nguyen.

    2   Birger Wernerfelt, Drazen Prelec, and David W. Randall.
                                                                   2


     Jonathan A. Karon, Thomas R. Murphy, Mark F. Itzkowitz, &
Lisa DeBrosse Johnson, for Massachusetts Academy of Trial
Attorneys, amicus curiae, submitted a brief.


     KAFKER, J.    The plaintiff, Dzung Duy Nguyen, commenced a

wrongful death action against the defendants, Massachusetts

Institute of Technology (MIT), MIT Professors Birger Wernerfelt

and Drazen Prelec, and MIT assistant dean David W. Randall,

arising out of the suicide of his son, Han Duy Nguyen (Nguyen).

The defendants are alleged to have been negligent in not

preventing Nguyen's suicide.    The motion judge allowed summary

judgment for MIT and the individual defendants, finding no duty

to prevent Nguyen's suicide.    Although we conclude that, in

certain circumstances not present here, a special relationship

and a corresponding duty to take reasonable measures to prevent

suicide may be created between a university and its student, we

affirm the decision of the motion judge that the defendants are

entitled to judgment as a matter of law.3

     Background.    We summarize the facts in the record in the

light most favorable to the plaintiff.    Godfrey v. Globe

     3 We acknowledge the amicus brief filed by the Massachusetts
Academy of Trial Attorneys; and the amicus brief filed in
support of defendants by Amherst College, Bentley University,
Berklee College of Music, Boston College, Boston University,
Brandeis University, College of the Holy Cross, Emerson College,
Endicott College, Harvard University, Northeastern University,
Simmons College, Smith College, Stonehill College, Suffolk
University, Tufts University, Williams College, and Worcester
Polytechnic Institute.
                                                                     3


Newspaper Co., 457 Mass. 113, 114 (2010).    We reserve additional

facts for our discussion of the legal issues.

    1.   The parties.    At the time of his death on June 2, 2009,

Nguyen was a twenty-five year old graduate student in the

marketing program at MIT's Sloan School of Management (Sloan)

and lived off-campus.    Prelec was a Sloan faculty member and

served as Nguyen's graduate research advisor.   Wernerfelt was a

Sloan faculty member and head of the Marketing Group Ph.D.

program whose responsibility included advising graduate students

concerning their coursework and research.    Randall was an

assistant dean in MIT's student support services (student

support) office.

    2.   MIT support resources.    In May, 2007, after his first

academic year at MIT and two years before his death, Nguyen

contacted Sloan's Ph.D. program coordinator, Sharon Cayley, for

assistance with test-taking problems.    Nguyen explained to

Cayley that he was "failing all of my classes because I don't

know how to take [examinations (exams)].    I know the course

material, but it just won't happen for me on exams."   Cayley

then referred Nguyen to an MIT student disability services

office coordinator, who described some of MIT's accommodations

for individuals with disabilities.   Nguyen declined such

accommodations.    In her notes from her meeting with Nguyen, the

coordinator wrote that Nguyen "does not want to connect with MIT
                                                                    4


Medical.   (I recommended that he do so.)   Says it won't be

helpful; no reason to do so" (emphasis in original).    After two

meetings with the coordinator, Nguyen reported to Cayley that

the meetings were of "absolutely no use . . . [the coordinator]

seemed to think that because I was referred to her, that meant

that I was disabled, and therefore had only disability

accommodations to offer me."

    On June 25, 2007, Cayley referred Nguyen to MIT's mental

health and counselling service (MIT Mental Health) and informed

Wernerfelt that this referral was Cayley's "response to

[Nguyen's] expressed need for remedial study skills."     On July

9, 2007, Nguyen met with Dr. Celene Barnes, a psychologist at

MIT Mental Health.    On meeting Barnes, Nguyen stated that he did

not know why he "was referred here.    My issues have nothing to

do with [mental health]."    During the intake meeting, Nguyen

denied suicidal ideation.    Barnes "provided [a] brief overview

of [information] on test anxiety and gave him handouts used in

the test anxiety workshop [and] [o]ffered to work with him on

this issue."   Nguyen "declined, stating again that he did not

want to seek[] services at [MIT Mental Health] due to the stigma

associated with it."

    On July 25, 2007, Nguyen had a second appointment with

Barnes.    She conducted a general intake, which irritated Nguyen

because "he didn't know what other [mental health] issues had to
                                                                   5


do with his test taking problem."   During this meeting, Nguyen

disclosed to Barnes that he had had a long history of depression

with two prior suicide attempts during college but denied any

present suicidal ideation.   Nguyen also disclosed that he had

been in treatment prior to coming to MIT and that he had resumed

treatment with a psychiatrist in the area.   Although Nguyen had

hoped that his test anxiety issue would be resolved in one

appointment, he agreed to follow up with Barnes at the start of

the school year.

    On July 29, 2007, Nguyen told Cayley that he found MIT

Mental Health to be "useless," that Barnes "proceeded to turn me

into a mental patient, and I was forced to discuss things that I

really didn't want to," and that he doubted that MIT Mental

Health was the "correct agency to solve my problem."   Further,

Nguyen questioned why Wernerfelt had to be informed of the

referral to Barnes because Nguyen was "hoping to keep the circle

as small as possible, since I'm very ashamed and embarrassed

about [my test-taking problems]."

    On August 9, 2007, Nguyen reported to Barnes that he was

receiving treatment from Dr. John J. Worthington, a psychiatrist

at Massachusetts General Hospital (MGH), not MIT Mental Health.

Barnes offered to consult about treatment planning, but Nguyen

declined.   Subsequently, Nguyen informed Barnes that he had

"been able to make other arrangements for treatment, so there
                                                                  6


will be no need to search any further, but I really appreciate

all of your effort thus far."

     On September 6, 2007, Nguyen met with Randall, the

assistant dean in the student support office.4   Before meeting

with Randall, Nguyen had sent an electronic mail (e-mail)

message to another student support dean, inquiring whether the

student support office could help him with his problem, which

was that he had "difficulty with taking exams, to the extent

that [he was] failing classes" and asked if the student support

office offered "any kind of counseling service that teaches

study skills."   In their first meeting, Randall reported that

Nguyen was "very committed to this not being seen as a 'problem'

and [was] looking for a quick fix."   Toward the end of the

meeting, Nguyen acknowledged that he had a long history of

mental health issues and depression and that he was seeing a

psychiatrist, Dr. Worthington, off campus.

     On September 24, 2007, Nguyen returned to see Randall.

Nguyen described a "long history of depression dating back to

high school," and treatment by "several . . . therapists during

college."   He also "acknowledged two suicide attempts in the


     4 At the time, Randall was a licensed clinical psychologist.
Both parties are in agreement, however, that Randall did not
have a clinician-patient relationship with Nguyen in his
nonclinical capacity as assistant dean in the Massachusetts
Institute of Technology (MIT) student support services office.
                                                                   7


past and frequent suicidal thoughts."   Nguyen, however, stated

that he "did not identify a specific plan [to commit suicide]

. . . and [was] not imminently suicidal."   Although perceiving

that Nguyen was not an imminent threat, Randall "strongly

encouraged" Nguyen to visit MIT Mental Health.   But after his

recent MIT Mental Health meeting with Barnes, Nguyen was

resistant and stated that his current psychiatrist was already

aware of his prior suicidal ideation and that Nguyen also had

plans to see another therapist, Dr. Stephen Bishop, in Rhode

Island.

    By the end of the September 24 meeting, Nguyen gave Randall

permission to contact Worthington, Bishop, and Barnes.     Later

that day, Randall left a voice message for Worthington.

Subsequently, Nguyen revoked Randall's permission to contact

Worthington and stated in an e-mail message that he would "like

to keep the fact of my depression separate from my academic

problems.   I'd prefer that we not any further discuss the

depression, that my academic problems can be framed in terms of

a deficit in study skills instead.   If you can offer any such

aid, I'd be happy to further employ your services."   On

September 25, Randall acknowledged Nguyen's decision and replied

that he "would still like to meet with you and think that I can

be helpful."   Randall also stated in the e-mail message that

Nguyen was permitted "to schedule another [appointment]."
                                                                  8


Nguyen did not respond to Randall's e-mail message and did not

have any further meetings or contact with Randall after

September, 2007.

    Worthington followed up with Randall on September 27, 2007.

Worthington was unable to share any information or confirm that

Nguyen was his patient, but said that he could listen to

Randall's concerns, especially regarding Nguyen's safety.

Randall informed Worthington that Nguyen appeared "agitated, a

little suspicious, and anxious, both at [the student support

office] and MIT [Mental Health]," and of Nguyen's "suicidal

thoughts and previous attempts."   Worthington did not discuss

the case further, but agreed the information should be taken

seriously.   On September 28, 2007, Randall told Barnes that he

had spoken with Worthington about Nguyen, and wrote, "Let's keep

in touch about this student."   Barnes responded, "I agree, let's

definitely keep in touch about [Nguyen]."   Nguyen did not return

to see Barnes or any other mental health provider at MIT Mental

Health.

    3.    Nguyen's mental health history.   Although Nguyen

briefly sought out the student disability services office, MIT

Mental Health, and the student support office between May and

September, 2007, he extensively consulted with clinicians not

affiliated with MIT.   Between July, 2006, when Nguyen moved to

Massachusetts, and May, 2009, Nguyen saw at least nine private
                                                                   9


mental health professionals who collectively recorded over

ninety in-person visits during this period.   There was no

indication from any of these mental health professionals that

Nguyen was at an imminent risk of committing suicide.

    From July, 2006, two months before enrolling at MIT, to

November, 2008, Nguyen was treated by Worthington, a

psychiatrist at MGH.   Over the course of their forty-three in-

person appointments, Worthington discerned nothing indicating

that Nguyen was at an imminent risk of suicide.   Nguyen

requested electroconvulsive therapy to treat his depression, and

received six rounds of it at MGH in August and September, 2006.

    Starting in September, 2006, Nguyen began therapy with a

social worker at MGH and was scheduled for sixteen sessions.

Nguyen disclosed to the social worker that he had occasional

suicidal thoughts, but no suicidal intent or plan.   After their

twelfth visit, Nguyen canceled his remaining appointments

stating that his "time together [with the social worker had] not

resulted in an inch of progress."

    Nguyen's next therapist was Bishop, whom he saw for several

months in Rhode Island beginning in October, 2007.   Bishop

diagnosed Nguyen with dysthymic disorder, a chronic depressive

condition.   Nguyen saw Bishop six times between October, 2007,

and March, 2008, but stopped seeing him because of the distance

and because Bishop did not accept his health insurance plan.
                                                                   10


     From April, 2008, to March, 2009, Nguyen sought treatment

from a doctor at a private practice group who specialized in

sleep disorders.   This doctor did not think that Nguyen was at

risk of suicide during the time she was treating him.      Starting

in August, 2009, Nguyen saw a psychologist affiliated with the

same private practice group.   In February, 2009, Nguyen canceled

his future appointments with the psychologist because he

believed his "sleep patterns [were] beginning to converge on

nonpathology."

     Next, in November, 2008, Nguyen met twice with another

doctor to complete a psychological test.   During the interview,

Nguyen told that doctor that he was "not imminently suicidal."

That same month, Nguyen stopped seeing Worthington because

Nguyen believed him to be "too autocratic and didn't consider

[Nguyen's] input."5   Nguyen then began seeing yet another doctor

and continued to see him through May, 2009.   At Nguyen's initial

appointment, that doctor noted that Nguyen "made two 'half-

assed' suicide attempts.   He denies suicidal ideation."    At each

appointment, the doctor and Nguyen discussed whether Nguyen had

"any self-destructive thoughts . . . [or felt like] giving up."

     5 Nguyen had made a similar point in June, 2008, when he
sent an electronic mail (e-mail) message to Worthington stating,
"I need you to consider me as part of the team when it comes to
my own treatment. . . . After all I am a PhD student at one of
the world's top universities. Please give me a little credit
here."
                                                                   11


Nguyen denied any such thoughts or feelings.

    In March, 2009, Nguyen began seeing a different doctor,

with whom he had six visits.    Nguyen told the doctor about his

two prior suicide attempts but denied any current suicidal

ideation.   Throughout this time, the doctor did not believe that

Nguyen was at an imminent threat of self-harm.

    Nguyen's last appointment with this doctor was on May 28,

2009, five days before Nguyen's death.    The doctor noted that

Nguyen "did not say anything that sounded imminently suicidal or

hopeless, and we discussed more things that he would do toward

exploring thesis and career options, and we made a next

[appointment] for [June 18]."

    4.   Nguyen's academic challenges.    At times during his

studies at Sloan, Nguyen struggled academically and performed

"well below average" in some of his courses.   During Nguyen's

time at MIT, neither Wernerfelt nor Prelec was aware of Nguyen's

history of severe depression or prior suicide attempts.

Wernerfelt knew only that Nguyen had insomnia and test taking

anxiety, and that he was consulting off-campus mental health

professionals.

    On May 9, 2008, Prelec was informed by one of his MIT

colleagues that Nguyen was reportedly "out of it" and

"despondent," potentially because Nguyen was "having trouble

sleeping as of late."   On May 12, Prelec met with Nguyen and
                                                                    12


reported to Wernerfelt that Nguyen is "sleep deprived . . . and

is taking something on prescription to help him sleep.    He is

seeing a psychiatrist regularly, at Mass General (not MIT).

Same person he has been seeing since he got here."   Wernerfelt

replied that Nguyen "has had some serious issues with exam

anxiety, so I worry about the general[] [exams].   Perhaps we can

give them in a less concentrated form . . . [t]hat way he can

get a good grade under his belt . . .   I think that it would be

good to give him some confidence."6

     On May 26, 2008, Wernerfelt was informed that Nguyen had

performed poorly in a course that an MIT colleague taught.

Nguyen had told that colleague that he had "medical problems

that have prevented him from focusing on classes . . . [and]

asked [the colleague] to consider his weakened health when he

[took] the final."   Wernerfelt responded to his colleague that

Nguyen was "having serious problems.    Some of his issues seem to

peak at exam time, but there is much more to it than that.     He

has been seeing a psychiatrist at MGH (not MIT) as long as he

has been here.   I thus have no official information, but I do




     6 Wernerfelt testified that "general exams" were required
for all MIT Sloan School of Management Ph.D. students. Students
typically take these examinations at the end of their second
year, over a period of several days.
                                                                  13


believe that he is at risk."7   Wernerfelt suggested that his

colleague be lenient and "grade him based on the problem sets"

rather than his final examination.

     On June 2, 2008, Wernerfelt sent an e-mail message to seven

of Nguyen's professors, informing them that Prelec and he had

"decided to reduce the pressure on [Nguyen] by spreading out his

general[] [exams] over several weeks."   On June 4, Wernerfelt,

"[i]n an attempt to reduce the pressure on [Nguyen] as much as

possible," further modified Nguyen's examination schedule

allowing Nguyen to take the examinations when he was ready.

     In a June, 2008 self-evaluation form, Nguyen stated that

his academic performance was "[b]elow average, due to my medical

condition."   Nguyen indicated that the "primary nature of this

illness [was] insomnia" and that he had "been seeing a team of

doctors at [MGH] and elsewhere who have been trying to help me."

Nguyen described how "horrendously bad" his medical condition

was, stating that "[t]here were days during which I was so

completely debilitated for the entire day that I was unable to

get out of bed at all, much less function properly" and that at

one point he "had to be hospitalized because I was so delirious

     7 Wernerfelt testified that he meant "risk" to refer to
"some adverse reaction if [Nguyen] were to get a really low
grade" in Nguyen's economics course. Wernerfelt stated that a
low grade was "not a big deal" because if Nguyen got "a bad
grade . . . he [could] take a makeup exam or . . . take another
course instead" to satisfy the graduate school requirement.
                                                                   14


and incoherent after not being able to sleep for over [seventy-

two] hours."   Nguyen further stated that he "would not be

surprised if I have to be hospitalized again in the near

future."   Nguyen also stated that he was on his ninth different

sleeping pill prescription and that he was still not functioning

well.    Nguyen did not disclose any history of depression,

suicidal ideation, or his prior suicide attempts in his self-

evaluation.    After receiving Nguyen's self-evaluation,

Wernerfelt offered to help Nguyen obtain a "leave from the

program . . . such that [he] could return to a good situation

once the [doctors] lick [his] sleeping problems."

     On October 30, 2008, Nguyen sent an e-mail message to

Wernerfelt and requested an examination schedule that would take

place between January 12 and January 26, 2009, with his oral

examination during the week of January 26 through January 30,

2009.8   Prelec testified that Nguyen's performance "varied some,

but overall it was not a good performance."

     After Nguyen had completed his general examinations, the

faculty in his department met in January, 2009, to discuss

Nguyen's performance and whether he had passed.    Wernerfelt

advocated that "Nguyen should be passed and that the faculty

should counsel him to pursue a master's degree."    Wernerfelt

     8 Nguyen's general examinations originally had been
scheduled for the summer of 2008.
                                                                   15


also stated that "they might end up with 'blood on their hands'"

if the faculty were to fail Nguyen.9   One of Wernerfelt's

colleagues testified that the phrase, "blood on our hands," was

repeated several times.    After the faculty passed Nguyen,

Wernerfelt met with Nguyen to inform him that he had passed,

although he was required to take certain additional courses to

remain in the Ph.D. program.   Further, Wernerfelt "laid out the

path to a [Master's degree] . . . [and] [s]aid that all members

of the faculty felt that he would be unhappy in a professorial

job."    In March, 2009, Nguyen sent an e-mail message to Prelec,

telling him that "to be a professor" is what Nguyen "want[ed]

more than anything. . . . [and he was not] convinced that anyone

has really taken [his] health issues into consideration."

Nguyen remained insistent that he would "still do everything in

[his] power to ensure that [he] will finish the PhD."

     Prelec met with Nguyen weekly during the spring of 2009 and

noticed that Nguyen "seemed better" and was having fewer sleep

problems.   That semester, Nguyen served as a teaching assistant

and, at the end of the semester, was offered another teaching

assistant position for the fall of 2009, which he accepted.     In

     9 In contrast to failing a course, failing general
examinations could lead to dismissal from the graduate program.
Wernerfelt testified that if Nguyen were to fail his general
examinations, there was a "very small chance that . . .
something bad could happen . . . such as [Nguyen] hurting
himself or others."
                                                                  16


May, 2009, Prelec recommended Nguyen for a summer research

assistant position in an MIT laboratory.   On May 27, 2009,

Nguyen sent an e-mail message to the project investigator that

he was "very excited about [the] project . . . [and] would be

eager to begin very soon."   Nguyen also requested an update

about funding logistics, as he was under the impression that the

MIT laboratory's "coffers were bottomless."   Prelec was copied

on this message and forwarded it to Wernerfelt, stating that he

was "mildly nervous" about recommending Nguyen because "[w]ith

this talk of bottomless coffers . . . [Nguyen] will rapidly

offend . . . folks."   In response, Wernerfelt suggested that

"someone should talk to [Nguyen] about sending more respectful

e-mails" and that "[p]erhaps we should offer to prescreen his e-

mails . . . after two or three [Nguyen] might get the idea."

Wernerfelt offered to take the lead on speaking with Nguyen

about e-mail etiquette.

    5.   Nguyen's suicide.   At approximately 7 A.M. on June 2,

2009, Nguyen sent the project investigator an e-mail message, on

which he blind-copied Prelec:

         "I forgot to mention that this upcoming Monday I have
    a doctor's appointment that I had scheduled a long time
    ago, so I won't be able to come into the office until about
    11:30 that day. I hope that that won't be a problem.

         "If we can quickly follow up on the conversation that
    we had yesterday, if you'll forgive me, I'd like to be
    honest with you about something. [Prelec] recommended me
    for this position . . . [a]nd I'm not an undergrad
                                                                  17


    anymore; I'm a grad[uate] student now. For those reasons,
    it was disturbing, as well as a little insulting, to me
    that yesterday you took pains to express your expectations
    of me in a manner that presumed that I would give you
    anything less than this project deserved, that you would
    'give me a signal' if you didn't think that my contribution
    amounted to something deserving of authorship credit, that
    'there would be a problem' if it turned out that '[you]
    could do [the work] faster [your]self,' that you threatened
    me that you could tell by visual inspection whether my work
    was up to par. I like to feel like I've earned the right
    not to have my effectiveness or my integrity questioned
    anymore, and to hear you do that yesterday was kind of
    hurtful. I'm not sure that if you continue to do this that
    I'll be able to work as effectively as I'd like to be able
    to. Although I keep asking about it, I'm not just doing
    this for the money. I want to learn something and make a
    meaningful contribution . . . . Would it be possible that
    we could move forward with an understanding of good faith
    on my part?"

After receiving Nguyen's e-mail message, Prelec and the project

investigator spoke about it.   The project investigator told

Prelec that Nguyen had taken his comments out of context and

that Nguyen misinterpreted his intentions and the tone of the

meeting.

    Prelec forwarded the e-mail message to Wernerfelt, asking

if Wernerfelt could "talk to [Nguyen] as a somewhat neutral

party . . . [Nguyen] is misreading things.   Even so, the tone of

reply is totally out of line."   Wernerfelt responded, "I am so

sorry.   I will talk to [Nguyen] and let you know what he says."

    At approximately 9 A.M. on June 2, Nguyen arrived at a

laboratory in a building on MIT's campus.    The laboratory

coordinator noted that Nguyen's demeanor appeared "pretty
                                                                  18


normal" and that Nguyen was preparing for a research project.

After a number of missed calls between Nguyen and Wernerfelt, at

10:51 A.M., Nguyen reached Wernerfelt by telephone.   Nguyen left

the laboratory to take the call.10   After the telephone call

ended at approximately 10:59 A.M., Nguyen went to the roof of

the building and jumped off the building to his death.   A first

responder administered first aid to Nguyen "a few seconds" after

he landed and did not identify any signs of breathing, eye

movement, pulse, or consciousness.   It was determined that the

immediate cause of Nguyen's death was "blunt trauma with head,

skull, torso and extremity injuries" and that it occurred within

"seconds."

     Meanwhile, after Wernerfelt finished speaking with Nguyen,

at 11:04 A.M., Wernerfelt sent an e-mail message to Prelec:

     "I read [Nguyen] the riot act
     "Explained what is wrong about the e-mail
     "Told him that you or I would look over future e-mails he

     10Wernerfelt testified that he contacted Nguyen because he
had been forwarded Nguyen's e-mail message to the project
investigator and that he wanted to help with Nguyen's "social
skills." Wernerfelt testified that he "went through point for
point" giving "advice and explanations" on what was improper
with Nguyen's e-mail. Wernerfelt recommended that Nguyen, in
the future, let him or Prelec review Nguyen's e-mail drafts.
Wernerfelt reiterated that Nguyen "would be happier outside the
academe" and "should think about getting a [M]aster's degree and
pursuing a nonacademic job." At the conclusion of the telephone
call, Wernerfelt told Nguyen that "some patching up would have
to be done after this e-mail, and [Wernerfelt] thought [Nguyen]
should . . . contact [Prelec] and the two of them could together
figure out what the next steps would be."
                                                                  19


     send[s] . . .
     "I said that we know that he is not out to offend anyone
     but that he seems poor at navigating the academe
     "Said that this is an example of why we all recommended
     that he take a [Master's Degree] and go out to get a job
     "I talked about some papers he could turn into [a Master's]
     thesis and volunteered to supervise it
     "Said that he made you look bad vs [the laboratory] and
     that some patching up was necessary
     "He will call you about what to do"

Later in the afternoon on June 2, 2009, one of Wernerfelt's

colleagues sent an e-mail message to Wernerfelt that "I know you

were worried about suicide, but you can feel positive that we

tried very hard to help [Nguyen] (and especially you did so much

to help him)."11

     In 2011, the plaintiff commenced an action in Superior

Court, alleging that the defendants' negligence caused Nguyen's

death.    In March, 2016, the defendants moved for summary

judgment and the plaintiff filed a cross motion for summary

judgment.   In October, 2016, the defendants' motion for summary

judgment was allowed and the plaintiff's cross motion for

summary judgment was denied.    The plaintiff appealed from the

denial of his motion, and we granted his motion for direct

appellate review.

     Discussion.    The plaintiff contends that the defendants

owed Nguyen a duty of reasonable care and committed a breach of

     11The colleague testified that Wernerfelt "didn't actually
say suicide. He said serious consequences, which I interpreted
. . . as a risk for suicide."
                                                                     20


this duty.   Additionally, the plaintiff argues that the record

supports claims for punitive damages, conscious pain and

suffering, and breach of contract.     The plaintiff also asserts

that the Superior Court judge improperly denied the plaintiff's

motion to amend the complaint to assert claims against former

MIT chancellor Phillip Clay.    Lastly, the plaintiff contends

that summary judgment should be entered in his favor that Nguyen

was not an MIT employee at the time of his death for workers'

compensation purposes.

    1.   Standard of review.    Where the parties have cross-moved

for summary judgment, we review a grant of summary judgment de

novo to determine whether, viewing the evidence in the light

most favorable to the unsuccessful opposing party and drawing

all permissible inferences and resolving any evidentiary

conflicts in that party's favor, the successful opposing party

is entitled to judgment as a matter of law.     Epstein v. Board of

Appeal of Boston, 77 Mass. App. Ct. 752, 756 (2010).     See Cabot

Corp. v. AVX Corp., 448 Mass. 629, 636–637 (2007), citing Augat,

Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991).

    2.   Negligence claim.     a.   General negligence principles.

"To prevail on a negligence claim, a plaintiff must prove that

the defendant owed the plaintiff a duty of reasonable care, that

the defendant [committed a breach of] this duty, that damage

resulted, and that there was a causal relation between the
                                                                   21


breach of the duty and the damage."   Jupin v. Kask, 447 Mass.

141, 146 (2006).   Generally, there is no duty to prevent another

from committing suicide.   Under our case law, "we do not owe

others a duty to take action to rescue or protect them from

conditions we have not created."   Cremins v. Clancy, 415 Mass.

289, 296 (1993) (O'Connor, J., concurring).   "[T]he law has

persistently refused to impose on a stranger the moral

obligation of common humanity to go to the aid of another human

being who is in danger, even if the other is in danger of losing

his life."   W.L. Prosser & W.P. Keeton, Torts § 56, at 375 (5th

ed. 1984).

     b.   Special relationships and the duty to prevent suicide.

We have, however, recognized that special relationships may

arise in certain circumstances imposing affirmative duties of

reasonable care in regard to the duty to rescue, including the

duty to prevent suicide.   The classic case is the custodial

relationship, particularly jails or hospitals.12   In Slaven v.




     12In noncustodial cases, a defendant is also "liable for
another's death by suicide when, as a consequence of a physical
impact, death results from an 'uncontrollable impulse, or is
accomplished in delirium or frenzy.'" Slaven v. Salem, 386
Mass. 885, 886–887 (1982), quoting Daniels v. New York, N.H. &
H.R.R., 183 Mass. 393, 399-400 (1903). The plaintiff asserts
that the second scenario applies, that Wernerfelt triggered
Nguyen's uncontrollable suicidal impulse by the "riot act"
telephone call. In this case, the "uncontrollable impulse"
scenario does not apply, as there has been no prior physical
                                                                  22


Salem, 386 Mass 885, 888 (1982), we addressed the duty and

accompanying responsibilities of a jailor for the suicide of a

prisoner in his custody.

         "One who is required by law to take or voluntarily
    takes the custody of another under circumstances such as to
    deprive the other of his normal opportunities for
    protection is under a duty (1) to protect them against
    unreasonable risk of physical harm, and (2) to give them
    first aid after it knows or has reason to know that they
    are ill or injured, and to care for them until they can be
    cared for by others."

Id. at 887, citing Restatement (Second) of Torts § 314A (1965).

We further explained that "[t]he comments to § 314A state that a

'defendant is not liable where he neither knows nor should know

of the unreasonable risk, or of the illness or injury.'"

Slaven, supra, citing Restatement (Second) of Torts, supra at §

314A comment e.   Finally, we noted that in cases in other

jurisdictions "that have addressed the issue of the liability of

a jailor for the suicide of one in his custody, most have

required that there be evidence that the defendant knew, or had

reason to know, of the plaintiff's suicidal tendency."     Slaven,

supra at 888.

    We likewise conclude that there are other special

relationships, outside the custodial context, that may impose

affirmative, albeit limited, duties in regard to suicide



injury causing the uncontrollable impulse.   Slaven, supra at
887.
                                                                     23


prevention.    We therefore turn to the scope of the university-

student relationship, and the duties, if any, it imposes

regarding suicide prevention.13

     c.     The modern university-student relationship.   We begin

with the Restatement (Third) of Torts, which states that "[a]n

actor in a special relationship with another owes the other a

duty of reasonable care with regard to risks that arise within

the scope of the relationship."     Restatement (Third) of Torts:

Liability for Physical and Emotional Harm § 40(a) (2012).

Included in the list of special relationships giving rise to

such duty is "a school with its students."     Id. at § 40(b)(5).

This, of course, is the beginning and not the end of the

analysis.    There is a wide range of schools -- from elementary

to graduate school -- and great differences in the scopes of

student-school relationships.     Additionally, the Restatement

(Third) of Tort's formulation of special relationship is not

focused on the specific question of student suicide.

     The particularities of the university-student relationship

are of paramount importance in defining any duty.     Universities

are clearly not bystanders or strangers in regards to their

students.    See Mullins v. Pine Manor College, 389 Mass. 47, 51-


     13Our use of the term "university" encompasses other
institutions of higher education, including but not limited to
colleges and universities.
                                                                   24


52 (1983).    The primary mission of universities is academic in

nature.14    Universities also sponsor and have special

relationships with their students regarding athletics and other

potentially dangerous activities.    See, e.g., Kleinknecht v.

Gettysburg College, 989 F.2d 1360, 1370 (3d Cir. 1993) (duty of

care to lacrosse player during practice); Davidson v. University

of N. Carolina at Chapel Hill, 142 N.C. App. 544, 555-556 (2001)

(duty of care to cheerleader during practice).     See also Massie,

Suicide on Campus:     The Appropriate Legal Responsibility of

College Personnel, 91 Marq. L. Rev. 625, 641 (2008) (Suicide on

Campus).    Cf. Kavanagh v. Trustees of Boston Univ., 440 Mass.

195, 202 (2003) (special relationship does not extend to

athletes from other schools).    They are also property owners and

landlords responsible for their students' physical safety on

campus.     See Mullins, 389 Mass. at 51-52; Massie, Suicide on

Campus, supra at 642.     Furthermore, university involvement

extends widely into other aspects of student life.     See Dall,

Determining Duty in Collegiate Tort Litigation:     Shifting

Paradigms of the College-Student Relationship, 29 J.C. & U.L.

485, 519 (2003) (universities "do not conceive of their


     14For example, "[t]he mission of MIT is to advance
knowledge and educate students in science, technology, and other
areas of scholarship that will best serve the nation and the
world in the 21st century]." http://web.mit.edu/facts
/mission.html [https://perma.cc/KF4R-PQ3W].
                                                                  25


educational role narrowly . . . and foster many aspects of

student life and community involvement such as residential life,

multicultural programs, student organizations, student

government, student media, community service, internships and

externships, technology, health and fitness, and spirituality").

Accord Regents of the Univ. of Cal. vs. Superior Court of Los

Angeles, Supreme Court of California, No. S230658, slip op. at

27 (Mar. 22, 2018) (Regents) ("Along with educational services,

colleges provide students social, athletic, and cultural

opportunities. Regardless of the campus layout, colleges provide

a discrete community for their students.").

    But universities are not responsible for monitoring and

controlling all aspects of their students' lives.   "There is

universal recognition that the age of in loco parentis has

passed, and that the duty, if any is not one of a general duty

of care to all students in all aspects of their collegiate

life."   Massie, Suicide on Campus, 91 Marq. L. Rev. at 640.    See

Mullins, 389 Mass. at 52 (describing major "changes in college

life," and "the general decline of the theory that a college

stands in loco parentis to its students"); Schieszler v. Ferrum

College, 236 F. Supp. 2d 602, 610 (W.D. Va. 2002) ("colleges are

not insurers of the safety of their students").   See also

Bradshaw v. Rawlings, 612 F.2d 135, 139 (3d Cir. 1979)

(describing end of loco parentis relationship "between college
                                                                    26


and student that imposed a duty on the college to exercise

control over student conduct and, reciprocally, gave the

students certain rights of protection by the college").

       University students are young adults, not young children.

Indeed, graduate students are adults in all respects under the

law.   Universities recognize their students' adult status, their

desire for independence, and their need to exercise their own

judgment.    Consequently the modern university-student

relationship is respectful of student autonomy and privacy.     See

Bradshaw, 612 F.2d at 138 ("Trustees, administrators, and

faculties have been required to yield to the expanding rights

and privileges of their students"); Furek v. University of Del.,

594 A.2d 506, 516-517 (Del. 1991) (describing "realities of

modern college life where students are regarded as adults in

almost every phase of community life" [quotations and citation

omitted]).   This includes students' personal mental health

decisions.   Indeed, the privacy of student mental health records

are generally protected, absent the student's consent or an

emergency where disclosure is necessary to protect the health or

safety of the student or other persons.    See Family Educational

Right and Privacy Act of 1974, 20 U.S.C. § 1232g (2012).      See

also Health Insurance Portability and Accountability Act of

1996, 42 U.S.C. § 1320d-6 (2012) (imposing limitations on rights

of nonclinicians in obtaining or disclosing individually
                                                                    27


identifiable health information); Massie, Suicide on Campus, 91

Marq. L. Rev. at 648.15

     In deciding whether a special relationship and accompanying

duty exists between a university and a student in regard to

suicide prevention, and whether a breach of such a duty has

occurred, we must therefore take into account a complex mix of

competing considerations.    Students are adults but often young

and vulnerable; their right to privacy and their desire for

independence may conflict with their immaturity and need for

protection.    As for the universities, their primary mission is

to educate and they no longer are acting in loco parentis, but

they still have a wide-ranging involvement in the lives of their

students.   See, e.g. Mullins, 389 Mass. at 52; Bradshaw, 612

F.2d at 138.   See also Regents, slip op. at 17.

     d.   A university's duty regarding suicide prevention.    In

analyzing whether a duty to prevent suicide falls within the

scope of the complex relationship that universities have with

their students, we consider a number of factors used to

delineate duties in tort law.    Irwin v. Ware, 392 Mass. 745, 756


     15Universities must also be attentive to the requirements
of the Federal Rehabilitation Act of 1973, 29 U.S.C. § 794(a)
(2012), which states, "No otherwise qualified individual with a
disability in the United States . . . shall, solely by reason of
her or his disability, be excluded from the participation in, be
denied the benefits of, or be subjected to discrimination under
any program or activity receiving Federal financial assistance."
                                                                      28


(1984).   See Massie, Suicide on Campus, 91 Marq. L. Rev. at 639.

"Foremost among these is whether a defendant reasonably could

foresee that he [or she] would be expected to take affirmative

action to protect the plaintiff and could anticipate harm to the

plaintiff from the failure to do so."     Irwin, supra.   A related

factor is "reasonable reliance by the plaintiff [on the

defendant], impeding other persons who might seek to render

aid."   Id.   Other factors that have been considered relevant to

special relationships and the creation of a duty in the

university context are the "degree of certainty of harm to the

plaintiff; burden upon the defendant to take reasonable steps to

prevent the injury; some kind of mutual dependence of plaintiff

and defendant upon each other, frequently . . . involving

financial benefit to the defendant arising from the

relationship; moral blameworthiness of defendant's conduct in

failing to act; and social policy considerations involved in

placing the economic burden of the loss on the defendant."

Massie, Suicide on Campus, supra.     See Mullins, 389 Mass. at 51-

53.   See also Lake, Still Waiting:   The Slow Evolution of the

Law in Light of the Ongoing Student Suicide Crisis, 34 J.C. &

U.L. 253, 257-277 (2008) (Still Waiting) (catalog of key cases

and factors used by courts to determine duty); Regents, slip op.

at 18 ("Students are comparatively vulnerable and dependent on

their colleges for a safe environment.     Colleges have a superior
                                                                   29


ability to provide that safety with respect to activities they

sponsor or facilities they control").

     With these considerations in mind, we conclude that a

university has a special relationship with a student and a

corresponding duty to take reasonable measures to prevent his or

her suicide in the following circumstances.   Where a university

has actual knowledge of a student's suicide attempt that

occurred while enrolled at the university or recently before

matriculation, or of a student's stated plans or intentions to

commit suicide,16 the university has a duty to take reasonable


     16The Columbia Lighthouse Project, under the auspices of
Columbia University, created the Columbia-Suicide Severity
Rating Scale(C-SSRS), a suicide risk assessment tool that
provides useful guidance. See Columbia-Suicide Severity Rating
Scale. http://cssrs.columbia.edu/the-columbia-scale-c-
ssrs/about-the-scale/ [https://perma.cc/TR7Y-S8JB]. More
specifically, C-SSRS category four or five behavior is
informative of what constitutes a student's stated plans or
intentions to commit suicide:

     "4. Active Suicidal Ideation with Some Intent to Act,
     without Specific Plan -- Active suicidal thoughts of
     killing oneself and subject reports having some intent to
     act on such thoughts, as opposed to 'I have the thoughts
     but I definitely will not do anything about them.'

     "5. Active Suicidal Ideation with Specific Plan and Intent
     -- Thoughts of killing oneself with details of plan fully
     or partially worked out and subject has some intent to
     carry it out."

(Emphasis in original.) See Posner, Brent, Lucas, Gould,
Stanley, Brown, Fisher, Zelazny, Burke, Oquendo, & Mann,
Columbia-Suicide Severity Rating Scale (C-SSRS), Lifetime
Recent, Version 1/14/09 m9/12/17 (2008).
                                                                  30


measures under the circumstances to protect the student from

self-harm.   See Mullins, 389 Mass. at 52 ("Parents, students,

and the general community still have a reasonable expectation,

fostered in part by colleges themselves, that reasonable care

will be exercised to protect . . . students from foreseeable

harm"); Schieszler, 236 F. Supp. 2d at 608-609 ("relationship

between a college or university and its students can give rise

to a duty to protect students from harms of which the school has

knowledge," including risk of suicide); Restatement (Third) of

Torts, § 40(b)(5); Massie, Suicide on Campus, 91 Marq. L. Rev.

at 631 ("where college or university personnel are aware that a

student has made serious suicidal threats or attempts, they have

a duty to take reasonable steps to protect the student's

safety").    See also Pavela, Questions and Answers on College

Student Suicide:    A Law and Policy Perspective 8-9 (2006)

("[I]nstitutions of higher education face heightened risk of

liability for suicide when they ignore or mishandle known

suicide threats or attempts. . . . The main obstacle to better

suicide prevention on campus is underreaction, especially the

failure to provide [perhaps even require] prompt professional

evaluation and treatment for any student who threatens or

attempts suicide" [emphasis in original]).    We have sought to

define here the circumstances creating the special relationship

and the duty realistically recognizing the scope of the suicide
                                                                  31


problem on university campuses, the capacities of nonclinicians,

and the nature of the modern university-student relationship.17


     17It is estimated that 1,100 university students die by
suicide ever year. See Jed Foundation's Framework for
Developing Institutional Protocols For the Acutely Distressed or
Suicidal College Student 2 (2006), available at
https://www.jedfoundation.org/wp-content/uploads/2016/07
/framework-developing-institutional-protocols-acutely-
distressed-suicidal-college-student-jed-guide_NEW.pdf
[https://perma.cc/8MLG-2T3U] ("Jed Framework"). "According to
the Center for Disease Control and Prevention (CDC), suicide is
the 'second leading cause of death among [twenty-five to thirty-
four] year olds and the third leading cause of death among
[fifteen to twenty-four] year olds.' Thus, suicide prevention
is not simply a focus for traditional college- and university-
aged populations, but must also be a focus for graduate and
professional schools. The [twenty-five to thirty-four] year-old
demographic factors prominently in most graduate and
professional school programs and applies to the many college and
university students who extend their education" (footnote
omitted). Lake, Still Waiting: The Slow Evolution of the Law
in Light of the Ongoing Student Suicide Crisis, 34 J.C. & U.L.
253, 254–255 (2008). See Center for Disease Control, National
Center for Injury Prevention and Control, 10 Leading Causes of
Death by Age Group, United States -- 2015, https://www.cdc.gov
/injury/wisqars/pdf/leading_causes_of_death_by_age_group_2015-
a.pdf [https://perma.cc/A8TN-N2HQ] (from most recent statistics
available from CDC, in 2015, suicide was second leading cause of
death among both fifteen to twenty-four and twenty-five to
thirty-four year olds).

     The number of students with suicidal thoughts is even more
alarming. According to an Internet-based survey of 26,000
undergraduate and graduate students administered by the National
Research Consortium of Counseling Centers in Higher Education,
six per cent of undergraduate and four per cent of graduate
students reported seriously considering suicide within the past
twelve months. See Drum, Brownson, Denmark, & Smith, New Data
on the Nature of Suicidal Crises in College Students: Shifting
the Paradigm, 40 Prof. Psychol.: Res. & Prac. 213, 214-216
(2009). Similarly, in the American College Health Association's
National College Health Assessment, which surveyed over 63,000
students at ninety-two colleges and universities in 2017, 10.3
                                                                   32


       It is important to understand the limited circumstances

creating the duty.    It is definitely not a generalized duty to

prevent suicide.     Nonclinicians are also not expected to discern

suicidal tendencies where the student has not stated his or her

plans or intentions to commit suicide.    Even a student's

generalized statements about suicidal thoughts or ideation are

not enough, given their prevalence in the university community.

The duty is not triggered merely by a university's knowledge of

a student's suicidal ideation without any stated plans or

intentions to act on such thoughts.

       As previously explained, this duty hinges on

foreseeability.    See Irwin, 392 Mass. at 756; Mullins, 389 Mass.

at 52.   See also Massie, Suicide on Campus, 91 Marq. L. Rev. at

639.   Where a student has attempted suicide while enrolled at

the university or recently before matriculation, or has stated

plans or intentions to commit suicide, suicide is sufficiently

foreseeable as the law has defined the term, even for university

nonclinicians without medical training.    Reliance of the student



per cent of students reported that they had "seriously
considered" suicide within the previous twelve months, and 1.5
per cent of students had attempted to commit suicide within the
previous twelve months. See American College Health Association
National College Health Assessment (2017), at 2, 14,
http://www.acha-ncha.org/docs/NCHA-II_SPRING_2017_
REFERENCE_GROUP_EXECUTIVE_SUMMARY.pdf [https://perma.cc/F3NN-
U9XD].
                                                                  33


on the university for assistance, at least for students living

in dormitories or away from their parents or guardians, is also

foreseeable.   Universities are in the best, if not the only,

position to assist.   See Mullins, supra.   They have also

"fostered" expectations, at least for their residential

students, that reasonable care will be exercised to protect them

from harm.   Id. at 52, 54.   See Irwin, supra.

    The probability of the harm must of course be considered

along with its gravity including the death of the student.      See

Schieszler, 236 F. Supp. 2d at 609 ("there was an imminent

probability that [the decedent] would try to hurt himself");

Lake, Still Waiting, 34 J.C. & U.L. at 284 & n.204 (referencing

in article on risk of student suicide and violence Justice

Learned Hand's United States v. Carroll Towing Co., 159 F.2d

169, 173 [2d Cir. 1947], formulation that "if the probability be

called P; the injury, L; and the burden, B; liability depends

upon whether B is less than L multiplied by P: i.e., whether B

[is] less than PL"); Eisel v. Board of Educ. of Montgomery

County, 324 Md. 376, 386 (1991) (discussing magnitude of harm

and statistical possibility of risk of suicide).   Thus, where a

student has attempted to commit suicide while enrolled at the

university or recently before matriculation or stated plans or

intentions to commit suicide, that probability is sufficient to

justify imposition of a duty on the university.    See Eisel,
                                                                    34


supra.    The burden on the university is not insubstantial, but

so is the financial benefit received from student tuition.     See

generally Mullins, 389 Mass. at 53 (relating tuition to duty to

provide adequate protection);   Regents, slip op. at 13.   Moral

blameworthiness on the part of a university in failing to act to

intervene to save a young person's life, when it was within the

university's knowledge and power to do so, is understood and

accepted by our society.    See Eisel, supra at 391 ("if

classmates of [a middle school decedent] found her lying on the

floor of a lavatory, bleeding from slashed wrists, and those

students told one or more teachers of the emergency, society

would be outraged if the teachers did nothing and [the decedent]

bled to death"); Ames, Law and Morals, 22 Harv. L. Rev. 97, 112-

113 (1908) ("We should all be better satisfied if the man who

refuses to throw a rope to a drowning man or to save a helpless

child on the railroad track could be punished and be made to

compensate the widow of the man drowned and the wounded child").

     Reasonable measures by the university to satisfy a

triggered duty will include initiating its suicide prevention

protocol if the university has developed such a protocol.18    In


     18One resource that provides universities with guidance for
drafting is Jed Foundation's Framework for Developing
Institutional Protocols For the Acutely Distressed or Suicidal
College Student. See Jed Framework, supra at 2-3, 10-16.
                                                                   35


the absence of such a protocol, reasonable measures will require

the university employee who learns of the student's suicide

attempt or stated plans or intentions to commit suicide to

contact the appropriate officials at the university empowered to

assist the student in obtaining clinical care from medical

professionals or, if the student refuses such care, to notify

the student's emergency contact.19   In emergency situations,

reasonable measures obviously would include contacting police,

fire, or emergency medical personnel.   By taking the reasonable

measures under the circumstances presented, a university

satisfies its duty.

     We stress that the duty here, at least for nonclinicians,

is limited.20   It is created only by actual knowledge of a


     19We recognize that for college and university students the
emergency contact will often be the student's parents. But it
might not always be a parent or guardian, such as where the
student is married or where the student has informed the
University that the suicide attempt or stated plans or
intentions to commit suicide derive in part from a toxic home
environment (including parental pressures or abuse inflicted by
a parent). See Susan R. Furr, Westefeld, McConnell, & Jenkins,
Suicide and Depression Among College Students: A Decade Later,
32 Prof. Psychol.: Res. & Prac. 97, 98 (2001) (survey of 1,455
college and university students demonstrated that twenty per
cent of students who identified themselves as having suicidal
thoughts considered "parental problems" to be contributor to
their suicidal ideation and behavior).

     20For university-employed medical professionals, the duty
and standards of care are those established by the profession
itself. See Stepakoff v. Kantar, 393 Mass. 836, 841 (1985)
("plaintiff has not directed our attention to any case in which
                                                                   36


student's suicide attempt that occurred while enrolled at the

university or recently before matriculation, or of a student's

stated plans or intentions to commit suicide.   It also is

limited to initiating the university's suicide prevention

protocol, and if the school has no such protocol, arranging for

clinical care by trained medical professionals or, if such care

is refused, alerting the student's emergency contact.    Finally,

the duty is time-bound.   Medical professionals may, for example,

conclude that the student is no longer a suicide risk and no

further care or counselling is required.

    This limited duty takes a number of the complex and

competing considerations discussed above into account.    First,

it respects the privacy and autonomy of adult students in most

circumstances, relying in all but emergency situations on the

student's own capacity and desire to seek professional help to



a court has bifurcated the duty owed by a psychiatrist to a
suicidal patient by declaring that, when diagnosing a patient,
the psychiatrist must exercise the care and skill customarily
exercised by an average qualified psychiatrist, while, after
diagnosing a patient as suicidal, the psychiatrist's duty to
take preventive measures becomes one of 'reasonableness.' We
are unwilling to disturb our longstanding rule that a physician,
practicing a specialty, owes to his or her patient a duty to
comply in all respects with the standard set by the average
physician practicing that specialty"). See also McNamara v.
Honeyman, 406 Mass 43, 49 (1989), citing Stepakoff, supra at 840
("psychiatrist must exercise the same degree of skill and care
as is exercised by the average qualified practitioner in that
specialty, taking into account the advances in that profession
and the resources available to the physician").
                                                                    37


address his or her mental health issues.    Second, it recognizes

that nonclinicians cannot be expected to probe or discern

suicidal intentions that are not expressly evident.   It also

acknowledges the scope of the suicide risk on campus and seeks

to impose realistic duties and responsibilities on the

universities, allowing them to respond with their own suicide

prevention protocols if such protocols have been developed.

Finally, this limited duty is consistent with the modern

university relationship with its students, which is no longer in

loco parentis but rather provides for the students' independence

and self-determination.

    e.   Whether a duty was created in this case and, if so,

whether a breach of that duty occurred.    For reasons that will

be explained in detail below, we conclude that there was no duty

created in the instant case, and if there arguably was such a

duty two years before Nguyen's death, the defendants did not

commit a breach of it as a matter of law.   In sum, Nguyen never

communicated by words or actions to any MIT employee that he had

stated plans or intentions to commit suicide, and any prior

suicide attempts occurred well over a year before matriculation.

He also was a twenty-five year old adult graduate student living

off campus, not a young student living in a campus dormitory

under daily observation.   Nguyen repeatedly made clear that he

wanted to keep his mental health issues separate from his
                                                                  38


academic performance problems and that he was seeking

professional help from psychiatrists and psychologists outside

the MIT Mental Health system.

    i.     The relationship with Dean Randall in 2007.   In the

instant case, the question whether Randall, and therefore MIT,

had a special relationship with Nguyen to take reasonable

measures to prevent suicide in 2007 requires consideration of

Randall's knowledge of Nguyen's prior suicide attempts and

Nguyen's statements about present suicidal thoughts.     First,

Nguyen's prior suicide attempts in December, 2002, and April,

2005, were as an undergraduate student at a different university

and preceded his September, 2006, enrollment as an MIT graduate

student.   Additionally, although Nguyen had frequent suicidal

thoughts, which, in the light most favorable to the plaintiff,

can be read as present not past suicidal thoughts, Nguyen denied

suicidal ideation in 2007.    Thus, Randall had no actual

knowledge of Nguyen having attempted suicide while enrolled at

or recently before matriculating to MIT, or whether Nguyen had

stated plans or intentions to commit suicide.    Consequently,

Randall had no special relationship with Nguyen and thus no duty

to take reasonable measures to prevent Nguyen's suicide two

years before his death.    Nonetheless, Randall properly

encouraged Nguyen to seek professional help at MIT, which

Nguyen, as was his right, refused.   Nguyen also informed Randall
                                                                  39


that he was seeking professional help elsewhere and Randall

sought permission to communicate with that psychiatrist, which

Nguyen allowed and then promptly revoked.

    Finally, Randall invited further conversations with Nguyen,

which he declined.     That being said, Randall left Nguyen in the

care of competent outside professionals as Nguyen demanded.      In

these circumstances, as a matter of law, a twenty-five year old

graduate student's rights to privacy, autonomy, and self-

determination were properly respected.

    ii.   The relationship with Professors Wernerfelt and

Prelec.   In contrast to Randall's circumstances, no such special

relationship was even arguably created between Nguyen and the

defendants Wernerfelt and Prelec.    There was no evidence that

Wernerfelt and Prelec had actual knowledge of Nguyen's plans or

intentions to commit suicide.    Both were academics; neither was

a trained clinician.    Nguyen's communications to them about his

mental health problems related to insomnia and test-taking, not

to suicidal thoughts.    There was also no evidence that

Wernerfelt or Prelec were informed by MIT Mental Health, the

student support office, or Randall about Nguyen's two suicide

attempts in 2002 and 2005.    Even if Wernerfelt or Prelec had

such knowledge, the prior attempts were not close in time to

Nguyen's enrollment at MIT.    Given Nguyen's express request that

his academic issues be kept separate from his mental health
                                                                   40


issues and his assurances that he was being treated elsewhere,

there also was no duty to communicate this information to either

Wernerfelt or Prelec.    Finally, even though Wernerfelt commented

about possible "blood on their hands," it was stated

metaphorically in the entirely different context of persuading

his colleagues to allow Nguyen to pass his examinations.    We

note that Wernerfelt's expressed anxieties at the time of the

general examinations that Nguyen might harm himself were not

based on express statements or actions by Nguyen or information

from trained clinicians and were more than five months before

the time of the suicide.    As none of the medical professionals

treating Nguyen considered him "imminently suicidal," this was

certainly not something Wernerfelt could have intuited on his

own.21    Because the circumstances at hand did not trigger a


     21Dr. Worthington, who treated Nguyen over the course of
forty-three appointments over more than two years, testified
that he "never thought [Nguyen] was at that imminent risk [of
suicide] that he had to be admitted." Dr. Jeffrey Fortgang, the
last medical professional that Nguyen saw, also noted that
Nguyen did not seem "imminently suicidal or hopeless."

     Although clinicians commonly assess the "imminence of the
risk of suicide," such assessment, even for clinicians, is
difficult and disputed. See, e.g., Hawes, Yaseen, Briggs, &
Galynker, The Modular Assessment of Risk for Imminent Suicide
(MARIS): A proof of concept for a multi-informant tool for
evaluation of short-term suicide risk, 72 Comprehensive
Psychiatry 88 (2017); Simon, Imminent Suicide: The Illusion of
Short-Term Prediction, 36 Suicide and Life-Threatening Behavior
296 (2006). We do not here in any way impose such assessment on
a nonclinician.
                                                                     41


special relationship, we need not consider the duty of

reasonable care and whether a breach of such a duty occurred.

      f.   Voluntary assumption of a duty of care.   The plaintiff

also claims the defendants had a duty stemming from their

voluntary assumption of a duty of care.     "[A] duty voluntarily

assumed must be performed with due care."     Mullins, 389 Mass. at

52.   This duty, however, can lead to liability only where a

"failure to exercise such care increases the risk of such harm,

or "the harm is suffered because of the other's reliance upon

the undertaking."    Id. at 53.   Although MIT voluntarily offers

mental health student support services, there is no evidence

that these services increased Nguyen's risk of suicide.

Additionally, there was no evidence that Nguyen relied on MIT's

mental health services.    The facts bear out Nguyen's rejection

of such services.    Nguyen briefly consulted with MIT Mental

Health and the student support office for only a few months in

2007, nearly two years before his death.     Nguyen wanted

assistance from MIT only as it pertained to test-taking and

wanted to keep his mental health treatment separate.    Nguyen

declined further MIT services and instead engaged with nine off-

campus mental health professionals while remaining enrolled as

an MIT graduate student.    Cf. Mullins, supra at 54 (prospective

residential students rely on university's security features).

Accordingly, the plaintiff cannot succeed on a "voluntarily
                                                                      42


assumed duty" theory.

    3.   Punitive damages for wrongful death, conscious pain and

suffering, and breach of contract.   The plaintiff asserts that

he is entitled to punitive and emotional distress damages

because the defendants' reckless or grossly negligent conduct

was the proximate cause of Nguyen's death.    As we concluded

above, there was no evidence of the defendants' negligence and

consequently the plaintiff cannot succeed on such claims.       The

plaintiff also cannot succeed on his breach of contract claim,

as references to MIT Mental Health and the student support

office's coordination of services is merely generalized and not

sufficient to form an enforceable contract.   See Guckenberger v.

Boston Univ., 974 F. Supp. 106, 150 (D. Mass. 1997).    Further,

even if such a contract existed, the claim would still fail, as

Nguyen rejected assistance from both MIT Mental Health and the

student support office.

    4.   Motion to amend.   The plaintiff contends that his

motion to amend the complaint to assert claims against former

MIT chancellor Clay should have been allowed.   The Superior

Court judge denied the motion on grounds of futility.

    We review the denial of a motion to amend the complaint for

abuse of discretion.    Murphy v. I.S.K.Con. of New England, Inc.,

409 Mass. 842, 864 (1991), cert. denied, 502 U.S. 865 (1991).

Although leave to amend should be "freely given when justice so
                                                                      43


requires," Mass. R. Civ. P. 15 (a), 365 Mass. 761 (1974), such

leave may be denied where there is undue delay, undue prejudice

to the opposing party, or futility in the amendment (citation

omitted).   Mathis v. Massachusetts Elec. Co., 409 Mass. 256, 264

(1991).   Here, Clay, who served as chancellor of MIT from 2001

through 2011, directed efforts in implementing MIT's mental

health task force.   At the time of Nguyen's death, several key

recommendations had not yet been implemented.    There was no

indication that Clay had any personal knowledge of Nguyen's

mental health issues or was personally involved with Nguyen in

any other way.   Clay had no common-law duty to prevent Nguyen's

suicide, nor any special relationship with Nguyen, and he had

not voluntarily assumed a duty of care.    Furthermore, Clay had

no individual liability solely on the basis of his "general

supervisory role."   Lyon v. Morphew, 424 Mass. 828, 833 (1997).

Consequently, the proposed claims against Clay would be futile,

and we conclude that there was no abuse of discretion in denying

the plaintiff's motion to amend.

    5.    Workers' compensation.   The plaintiff argues that

Nguyen was not an MIT employee at the time of his death and

consequently his tort claims were not barred by the exclusivity

provision of the workers' compensation act, G. L. c. 152.       The

defendants claim that Nguyen was acting as an MIT employee and

the tort claims were barred.   We conclude, as did a judge in the
                                                                   44


Superior Court in his written decision on cross motions for

summary judgment that were filed on this issue, "that there are

too many conflicting pieces of material evidence presented for

this court to determine, as a matter of law, the unique question

of whether or not Nguyen was an MIT employee at the time of his

death."   The factual record is undeveloped and unclear and the

briefing inadequate on this difficult question involving paid

summer research outside of Nguyen's ordinary graduate school

activity for which he received a stipend.   Further complicating

matters, the financial and other documentary evidence is unclear

as to Nguyen's work status at MIT on June 2, 2009.

Additionally, whether the June 2, 2009, telephone call prior to

the suicide was work or school-related is also in question.

Consequently, there was no error in the denial of summary

judgment on this issue.   See Maxwell v. AIG Domestic Claims,

Inc., 460 Mass. 91, 97 (2011).

    Conclusion.    For the foregoing reasons, we conclude that

summary judgment was properly granted for the defendants on the

tort claims as a matter of law.   We further conclude that the

Superior Court judge properly denied summary judgment on the

workers' compensation claim, as there are material disputed

facts.

                                    So ordered.
