The Suicide Reportedly Resulting from a MySpace Friendship that Turned Abusive: Could It Provide the Basis for a Successful Tort Lawsuit?

Megan Meier, a thirteen-year-old girl in Missouri, recently committed suicide, reportedly because of a MySpace friendship that turned abusive. A twist in the story was that the "friend" with whom Megan had been chatting on MySpace did not actually exist; this "friend," instead, was invented by the mother of a teenage girl Megan knew.

This event has provoked a great deal of commentary. At the beginning of December, however, the St. Charles County prosecutor said no criminal charges will be filed. Could a civil suit be filed against the adults who reportedly perpetrated the hoax? In this column I will explore that question.

The Facts of the Megan Meier Case

The facts of the case are relatively simple. Megan had been friends with the daughter of Curt and Lori Drew, who lived a few houses away. Megan suffered from depression, and had changed middle schools to avoid a previous school's atmosphere of bullying. When she changed schools, Megan also stopped being friends with the Drews' daughter, who became angry at Megan.

Apparently to help her daughter get back at Megan, Lori Drew, with the help of an 18- year-old employee at her marketing firm and her daughter, created a fake MySpace site in the persona of a teenage boy named "Josh," who asked Megan to become his friend. Over a period of a few weeks, "Josh" won Megan's trust and made her believe he had a romantic interest in her. Then "Josh" announced that he had heard that Megan was a "bad friend," and began to insult her. His last communication with Megan, according to press reports, was that the "world would be better off without" Megan. After this final argument with "Josh," Megan hung herself. For weeks afterward, the Drews acted as if they were not involved, visiting with the Miers to grieve with them. Months later, their deceit was exposed.

Why There Was No Crime at Issue Here

Many commentators have focused on the bizarre behavior of Lori Drew; others, on the Internet's frightening power to allow neighbors to mask themselves from each other, and more generally to allow

the construction of entirely new identities - a phenomenon potentially further spurred by the rise of social networking sites.

However, as the St. Charles County prosecutor's decision not to charge anyone with a crime reminds us, lying, although immoral, is not necessarily illegal. To constitute a crime, there must be more. For example, if the lie had been designed to take something of value from Megan, it could have constituted fraud. If it had been specifically designed to cause her to place herself in harm's way, it might be deemed a form of criminal assault. But merely lying in order to hurt someone's feelings is not typically a crime, even if the victim hurts of kills himself or herself as a result.

But if lying to hurt someone's feelings is not a crime, could it be a tort? The general answer, is "Maybe." However, in the case of Megan Meier, the answer is probably "No."

Could the Lies Told in the Megan Meier Case Be the Basis for a Negligence Suit?

First, let's consider the possibility of a negligence suit. Negligence law places upon all of us a duty not to act in ways that could foreseeably impose an unreasonable risk of injury on others. One could argue that Lori Drew had such a duty with regard to her daughter's friend, and that she breached that duty when she began to claim to be "Josh" in her communications with Megan, or later, when she began to send insulting and abusive messages to Megan as "Josh."

There are two problems with this theory, however. The first is that the duty in negligence is typically a duty to avoid foreseeable physical injury, not pure emotional distress. (Granted, there are a handful of exceptions to this rule, but they do not apply in this case.) The foreseeable harm that Lori Drew unreasonably imposed on Megan was a risk of her feeling sad (when she discovered that "Josh" was a fake), or hurt (when "Josh" hurt her feelings). For there to be an action in negligence, one would have to show that Drew should have foreseen more than this, however. In particular, one would have to prove Lori Drew should have foreseen that her comments would lead not just to emotional hurt, but also to a personal injury, such as suicide. That point is far harder to prove, and simply may not be the case; Megan's suicide may well have been a total surprise to Lori Drew, though Drew very probably knew full well that Megan would be deeply hurt by the words of "Josh." .

Second, the causation issue here also posses difficulties. As with the foreseeability issue, while it might be easy to show that the nasty message Drew put in "Josh's" mouth caused Megan emotional distress, it is much harder to show that it was the legal cause of her death, since the final cause of Megan's death was Megan herself, who chose to end her life. Given that Megan's depression may have made it impossible for her to control her own choices, it may not be fair to treat her as what the law deems "a superseding cause" - that is, a cause that supersedes others in importance and breaks the causal chain. However, many judicial decisions about actions that result in suicide, as opposed to accidental death, do exactly that.

Could a Suit Alleging an Intentional Tort Fare Better than a Negligence Suit?

If negligence is not promising, what about bringing a case based on a theory that Lori Drew committed, instead, an intentional tort? For example, Missouri recognizes the tort of intentional infliction of emotional distress (IIED). The standard definition of IIED, found in the Restatement (Second) of Torts Section 46, holds an actor liable if, by extreme and outrageous conduct, he intentionally or recklessly causes severe emotional distress to another.

There are two advantages of an action based upon the tort of IIED, as compared to a negligence action. First, since the definition of the tort explicitly states that the injury is "emotional distress," any concerns about finding a physical injury upon which to anchor the claim are mooted. Second, since IIED is the only intentional tort which allows recklessness, not knowledge establishing foreseeability, to ground the wrongful intent, the requirements for the proof of the defendant's mental state to make out an initial case are less rigorous than they might otherwise be.

It might be objected that all Drew did was play a practical joke on Megan, and that practical jokes are never, by definition, extreme and outrageous conduct. I am not sure that this is correct. As early as 1920, in the Louisiana case of Nickerson v. Hodges, a court considered a claim based on a plot by a group of people to convince a vulnerable woman with a history of mental illness that she had discovered a pot of gold by means of a treasure map. The court held that the group members could be held liable for the woman's extreme emotional distress when she was publicly humiliated based on the wrongful belief they had induced her to embrace.

It may be possible to describe Lori Drew's conduct as "extreme and outrageous," especially given that, reportedly, she knew that Megan had been prescribed antidepressants. (The families had once vacationed together.) Furthermore, given Megan's reaction, it is obvious that she felt severe emotional distress. Moreover, it would not help Lori Drew to object that she could not have anticipated Megan's "extreme" reaction to severe emotional distress. In the arena of intentional tort, one takes one's victim as one finds her, even if she is what attorneys call an "eggshell" plaintiff.

The press reports do not suggest that the Meiers have initiated a private tort claim against the Drews. Moreover, it may be that the one year statute of limitations which governs most intentional torts has already run, or is about to. Still, a tort claim for IIED might be possible. If so, it would be interesting to see how a judge and jury would view each of the elements, and whether a jury would be willing to assign responsibility for Megan's death to Lori Drew.