Читать книгу The Law of Higher Education - William A. Kaplin - Страница 52
3.2.2 Negligence.
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3.2.2.1 Overview. Higher education institutions are facing a growing array of negligence lawsuits, often related to students or others injured on campus or at off-campus functions. Although most college students have reached the age of majority and, theoretically, are responsible for their own behavior, injured students and their parents are increasingly asserting that the institution has a duty of supervision or a duty based on its “special relationship” with the student that goes beyond the institution's ordinary duty to invitees, tenants, or trespassers. Courts have rejected this “special relationship” argument for most tort claims, but they have imposed on colleges and universities a duty to protect students from foreseeable harm, such as in cases of hazing or the presence of dangerous persons on campus.
When a postsecondary institution is not immune from negligence suits under either sovereign or charitable immunity, liability depends, first, on whether the institution's actions fit the legal definition of the tort with which it is charged; and, second, on whether the institution's actions are covered by one of the recognized defenses that protect against liability for the tort with which it is charged. For the tort of negligence, the legal definition will be met if the institution owed a duty to the injured party, the institution failed to exercise due care to avoid the injury, and that failure was the proximate cause of the injury. Whether a duty exists is a matter of state common law. See Feliccia v. Lackawanna College, 175 A.3d 221 (Pa. 2017) (determining that an issue of fact existed as to whether a Pennsylvania college was required to have qualified medical personnel present at intercollegiate athletic events to satisfy a duty of care to the college's student-athletes). Typical defenses to tort claims include the claim that there was no duty (because the injury was not foreseeable), that the plaintiff's own negligence (called comparative fault) contributed substantially to his or her harm, or that the plaintiff assumed the risk of injury. If present, comparative fault or assumption of the risk can completely bar a plaintiff's recovery, or limit it, depending on the law in the jurisdiction.
Negligence claims against colleges and universities are typically a result of injury to a student or other invitee (an individual who is lawfully on campus or participating in a college or university activity) as a result of allegedly defective buildings or grounds (premises liability); accidents or other events occurring either on or off campus as a result of instructional activities, cocurricular activities, or outreach activities; or alleged educational malpractice. Cases involving claims in each of these areas are discussed below.
Although courts were historically reluctant to hold colleges to the same standard of care applied to business organizations, landlords, and other noneducational organizations, that attitude has changed markedly in the last decade. Whereas courts in the early and mid-twentieth century applied the doctrine of in loco parentis to shield colleges and universities from liability in tort claims brought by students or their parents, that doctrine fell out of favor when the age of majority for students was lowered to 18, making virtually all college students “adults” in the eyes of the law. Following the demise of in loco parentis, a few courts issued influential rulings that characterized colleges and universities as “bystanders” with respect to the activities of “adult” students.
The seminal case involving a college as “bystander” is Bradshaw v. Rawlings, 612 F.2d 135 (3d Cir. 1979), cert. denied, 446 U.S. 909 (1980), in which the court refused to impose liability on a college for injuries suffered by a student. The student, a sophomore at Delaware Valley College in Doylestown, Pennsylvania, was seriously injured in an automobile accident following the annual sophomore class picnic, which had been held off campus. The injured student was a passenger in a car driven by another student, who had become intoxicated at the picnic. Flyers announcing the picnic were copied by the college duplicating facility. They featured drawings of beer mugs and were prominently displayed across the campus. The sophomore class's faculty advisor, who did not attend the picnic, cosigned the check that was used to purchase beer. The injured student brought his action against the college, as well as the beer distributor and the municipality, alleging that the college owed him a duty of care to protect him from harm resulting from the beer drinking at the picnic. The jury in the trial court awarded the student, who became quadriplegic as a result of the accident, damages in the amount of $1,108,067 against all defendants, and each appealed on separate grounds.
The college argued on appeal that the plaintiff had failed to establish that the college owed him a legal duty of care. The appellate court agreed with this argument. The court's opinion began with a discussion of the changes that have taken place on college campuses in recent decades that lessen the duty of protection that institutions once owed to their students. Assertions by students of their legal rights as adults reduced the colleges' duty to protect them, according to the court.
The student had the burden of proving the existence of a legal duty by identifying specific interests that arose from his relationship with the college. Concentrating on the college's regulation prohibiting the possession or consumption of alcoholic beverages on campus or at off-campus college-sponsored functions, he argued that this regulation created a custodial relationship between the college and its students. A basic principle of law holds that one who voluntarily takes custody of another is under a duty to protect that person. The plaintiff reasoned that he was entitled to the protection voluntarily assumed by the college when it promulgated the regulation. The court dismissed this argument on the ground that the college regulation merely tracked state law, which prohibited persons under the age of 21 from drinking intoxicants. By promulgating the regulation, then, the college did not voluntarily assume a custodial relationship but only reaffirmed the necessity of student compliance with Pennsylvania law.
Bradshaw influenced the rulings of other courts throughout the 1980s, the most frequently cited of which are Beach v. University of Utah, 726 P.2d 413 (Utah 1986), and Rabel v. Illinois Wesleyan University, 514 N.E.2d 552 (Ill. App. Ct. 1987). The student in Beach was injured after falling off a cliff while participating in a university-sponsored field trip. The student, who was under the legal age for drinking alcohol, had consumed alcohol in full view of the faculty advisor shortly before wandering off and falling. Despite the fact that the university had promulgated regulations against drinking, and the faculty member had failed to enforce those regulations, the court refused to impose liability on the university. The student in Rabel was abducted from her residence hall by a fellow student engaged in a fraternity initiation; the court found no duty, even with respect to the university's role as landlord of the residence hall.
This “bystander” approach appears to be falling out of favor with courts, which, in cases decided over the past decade, are now imposing the same duty on colleges and universities that has traditionally been required of business organizations, landlords, and other nonacademic entities. Institutions may be liable for the negligence of their employees and, under certain circumstances, may even be found liable for the negligence of nonemployees. For example, in Foster v. Board of Trustees of Butler County Community College, 771 F. Supp. 1122 (D. Kan. 1991), a basketball coach had asked a student to pick up a potential recruit at the airport and drive him to a nearby motel. On his return from the airport, the student ran a red light and hit a truck, resulting in his death and injuries to the recruit and the truck driver. Both injured parties sued the college.
A jury awarded the injured recruit $2.26 million against the college and the estate of the driver. On appeal, the college argued that it was not responsible for the actions of the student driver. The court, noting that the student's car was uninsured and unregistered and that the student had no valid driver's license, ruled that “the Butler Community College defendants could have discovered [the driver's] unfitness for the task had any investigation been conducted” (771 F. Supp. at 1128). The college had policies requiring students driving on the college's behalf to be licensed; the college's failure to follow its policies and its failure to ascertain whether the student was qualified to undertake the responsibility it assigned him resulted in the court's determination that, for purposes of respondeat superior liability, the student was a “gratuitous employee” of the college.
Despite the outcome in the Butler Community College case, colleges are usually not responsible for the torts of students. For example, in Gehling v. St. George's University School of Medicine, 705 F. Supp. 761 (E.D.N.Y. 1989), affirmed without opinion, 891 F.2d 277 (2d Cir. 1989), medical students who treated a colleague after he collapsed in a road race did not expose the medical school to malpractice liability; the court ruled that they had not acted as agents of the school. The outcome might have been different, however, if the medical students had been involved in an athletic event sponsored by the medical school.
An emerging area of potential negligence liability for colleges, and their staffs, is computer security. For example, in addition to potential liability for computer usages that violate federal statutes or the First Amendment, institutions may become liable for negligent loss or disclosure of confidential electronic records, negligent supervision of employees who use electronic information for unlawful purposes, negligent failures to keep networks secure from outsiders who gain access for unlawful purposes, or negligent transmission of data that intrudes upon privacy interests of students, faculty, staff, or outsiders.
3.2.2.2 Premises liability. These claims involve injuries to students or other invitees who allege that a college or university breached its duty as a landlord or landowner to maintain reasonably safe buildings (classrooms, residence halls, sports facilities, performing arts centers) and land (parking lots, athletics field, pathway, sidewalks). If a “dangerous” condition is obvious, there is no duty to warn an invitee of potential danger. For example, in Shimer v. Bowling Green State University, 708 N.E.2d 305 (Ohio Ct. Cl. 1999), a student who fell into an open orchestra pit sued the college for the injuries she sustained. The court found for the college, stating that the plaintiff, who had been working on a theater production and was familiar with the stage and the orchestra pit's location, was negligent in not using care to avoid falling into the pit.
In a more typical premises liability case, on move-in day, a parent of a student at Louisiana Tech University slipped on a mat at the entry to a university dormitory, after a university employee allegedly warned her of the dangers of wearing flip-flops while moving in her son on a rainy day. A state court of appeals held that the lower court's award of summary judgment to the university defendant was not appropriate, as genuine issues of material fact existed as to whether the university should have been aware of the hazard caused by rainwater on the floor near the entry to the dormitory during high-traffic time on a rainy day. Kadlec v. Louisiana Tech. Univ., 208 So.3d 992 (La. Ct. App. 2016).
Premises liability cases often turn on the defendant's knowledge of the presence of a dangerous condition. For example, in University of Texas v. Bellinghausen, No. 03-14-00749-CV, 2016 WL 462735 (Tex. Ct. App. 2016), a University of Texas at Austin student slipped and fell on a raised crack in the sidewalk, breaking his arm. He alleged that the university was negligent in allowing the sidewalk to become damaged, as well as for failing to ensure that its employees could reduce the damage and warn others about the dangerous condition. The latter arguments were brought because a university employee allegedly saw the student fall earlier in the same area. Dismissing the claim, the Texas Court of Appeals concluded that it would be speculation that the university had actual knowledge about the dangerous condition that would establish a duty to warn. See also Sampson v. University of Texas, 500 S.W.3d 380 (Tex. 2016), in which the Texas Supreme Court determined that a professor's tripping over an extension cord at a tailgate hosted by the law school did not constitute actual knowledge by the university of a dangerous condition or actual knowledge of a potential danger. See also Almarante v. Art Institute of Fort Lauderdale, Inc., 921 So.2d 703 (Fla. Dist. Ct. App. 2006), where the court ruled that a student injured while crossing a highway that divided the college's campus stated a negligence claim against the college.
The majority rule that landowners are liable only for those injuries on their property that are foreseeable remains intact, but courts are differing sharply on what injuries they view as foreseeable. For example, in Pitre v. Louisiana Tech University, 655 So.2d 659 (La. Ct. App. 1995), reversed, 673 So.2d 585 (La. 1996), the intermediate appellate court had found the university liable for injuries to a student who was paralyzed during a sledding accident. When a rare snowstorm blanketed the university's campus, the administration issued a written warning to its students, placing it on each student's bed, urging them to use good judgment and to avoid sledding in dangerous areas. Pitre and two classmates used a trash can lid as a sled and rode it down a hill; Pitre struck the base of a light pole in a university parking lot. The appellate court ruled that the university had a duty to prevent unreasonably unsafe student activities and viewed the written warning as an encouragement to engage in sledding. Although the court acknowledged that Pitre's own behavior contributed to his injuries, it found the university 25 percent liable.
The Supreme Court of Louisiana reversed, reasoning that the danger encountered by Pitre and his friends was obvious to a reasonably careful invitee. The court stated that, since sledding is not inherently dangerous, the university could not foresee that Pitre would select a location unsuitable for sledding; furthermore, said the court, it was reasonable for the university to install light poles as a safety mechanism. The court ruled that the university bore no liability for the plaintiff's injuries.
Premises liability claims may also arise when an invitee misuses a college or university building or other property of an institution, but that misuse is claimed to be foreseeable. For example, in Robertson v. State of Louisiana, 747 So.2d 1276 (La. Ct. App. 1999), parents of a 23-year-old senior student sued Louisiana Tech University for negligence after their son died from falling from the roof of a campus building. The university had built a roof over its swimming pool; the roof, whose apex was 56 feet high, extended to within several feet of the ground. The son had climbed onto the roof after spending the evening drinking with friends. There had been several earlier incidents of students climbing on the roof; in all cases the students were intoxicated, and in two cases the students had been seriously injured. The parents of the student who died claimed that, because of these earlier climbing incidents, the injury to their son was foreseeable, and the university should have erected some form of barrier to prevent students from climbing onto the roof. Despite the university's knowledge of the earlier climbing incidents, and testimony that a modest investment in shrubbery would likely have prevented future climbing expeditions, the court ruled that the roof was not unreasonably dangerous, that the danger of falling off the roof was obvious, and therefore that the university owed no duty to prevent the student from climbing onto the roof. For a case involving a trespasser's death after climbing a cliff on college property, in which the court entered summary judgment for the college, see Blust v. Berea College, 431 F. Supp. 2d 703 (E.D. Ky. 2006). And for an application of the assumption of risk doctrine in a case in which a student sued New York University when he was injured during a Jell-O wrestling event in a residence hall courtyard, see Wisnia v. New York University, 239 N.Y.L.J. 24 (N.Y. Sup. Ct. January 23, 2008).
Colleges and universities in Florida have gained some protection from liability in cases such as Nicholson. The legislature of Florida has enacted a law creating a potential bar to recovery in a negligence lawsuit if the plaintiff is voluntarily intoxicated by drugs or alcohol and the court determines that the plaintiff is the primary cause of his or her injuries (Fla. Stat. Ann. § 768.075 (West 2011)). The statute also exempts property owners and their agents from liability for injuries to trespassers.
Invitees have attempted to impose tort liability on a college when some form of criminal activity on campus results in injury. Again, the majority rule is that the criminal activity must have been foreseeable. For example, in Nero v. Kansas State University, 861 P.2d 768 (Kan. 1993), the Kansas Supreme Court reversed a summary judgment award for the university and ordered the case to be tried, ruling that a jury would need to decide whether the rape of a student by a fellow student in a residence hall was foreseeable because the alleged rapist had been accused of an earlier sexual assault on campus and university officials were aware of that fact when they assigned him to live during summer session in a coed residence hall. But in L.W. v. Western Golf Association, 712 N.E.2d 983 (Ind. 1999), the Indiana Supreme Court ruled that the owners of a “scholarship house” at Purdue University were not liable to a student who became intoxicated and later was raped in her room by a fellow scholarship house resident. Finding that there was no record of similar incidents that would have made such a criminal act foreseeable, the court refused to impose liability.
The legal analysis is similar when plaintiffs allege that an injury occurring at a recreational event sponsored by the college was foreseeable. The Supreme Court of Kansas ruled that Wichita State University (WSU) was not liable for the death of an invitee who was shot by a gang member after a fireworks celebration on campus. In Gragg v. Wichita State University, 934 P.2d 121 (Kan. 1997), the children of the invitee, Ms. Gragg, claimed that the university and several corporate sponsors of the fireworks program failed to provide adequate security, that the lighting was inadequate, and that the defendants had failed to warn the victim that there had been criminal incidents near the WSU campus. The court ruled that the university and other defendants did not owe Gragg a legal duty to protect her from the criminal act of a third party. Since the WSU police did not know that the assailant was on campus or that he intended to shoot a rival gang member, the shooting was not foreseeable. The court distinguished Nero because, in Nero, the university was aware of the assailant's previous criminal record. No such knowledge was present in this case. Furthermore, similar celebrations had been held on campus for the prior 17 years; no shootings or other violent crime had taken place.
But in Hayden v. University of Notre Dame, 716 N.E.2d 603 (Ind. Ct. App. 1999), a state appellate court reversed a summary judgment award for the university. A football fan with season tickets was injured when a football was kicked into the stands and spectators lunged for it. The plaintiff argued that the university should have protected its spectators from being injured and that lunging fans were common at Notre Dame football games. The court ruled that because there were many prior incidents of fans lunging for footballs, Notre Dame should have foreseen the type of injury sustained by the plaintiff. Given the foreseeability of this behavior, the court ruled that Notre Dame owed the plaintiff a duty to protect her from injury.
Even if a college is not the owner of the premises alleged to be dangerous, if it has some control over that property, or if students have access to the property, the college could be liable for injuries related to that property. For example, in Ginsburg v. City of Ithaca, Cornell University et al., 839 F. Supp.2d 537 (N.D.N.Y. 2012), the father of a Cornell student who had committed suicide by jumping from a bridge on the Cornell University campus in 2009 sued Ithaca (which owned the bridge) and Cornell for negligence. The father claimed that, because 29 individuals had jumped from several bridges on or near Cornell's campus since 1990, Cornell and Ithaca had a duty to “implement appropriate suicide prevention measures on the bridge” when it was redesigned and reconstructed 2 years earlier. The trial court ruled that “it was clearly foreseeable that someone may commit suicide” by jumping from the bridge used by the son and rejected Cornell's motion for summary judgment. The court explained that, “given the history of suicides and suicide attempts, defendants' public acknowledgement of the phenomenon, and the bridge's accessibility to a student population—15 percent of which regularly considers suicide—shows defendants had actual, or at least constructive, knowledge that a suicide attempt from the bridge was foreseeable” [839 F. Supp.2d. at 541]. Landowners and landlords also have a duty to provide accurate information about potentially dangerous conditions to independent contractors working on their property. For a discussion of this duty, see Bennett v. Trevecca Nazarene University, 216 S.W.3d 293 (Tenn. 2007). Cornell University, which has several open gorges that cut through its campus, has faced other lawsuits involving student death or injury on those premises. See, for example, King v. Cornell University, 973 N.Y.S.2d 534 (N.Y. App. Div. 2013) (denying summary judgment to university in premises liability action based on student's death from falling into steep cliff while traversing university-maintained hiking trail at night while intoxicated).
3.2.2.3 Liability for injuries related to on-campus instruction. Students or other invitees injured while involved in on-campus instructional activities may file negligence claims against the institution, the instructor, or both. For example, in McDonald v. University of West Virginia Board of Trustees, 444 S.E.2d 57 (W. Va. 1994), a student enrolled in a theater course sued the university for negligence, seeking damages for a broken leg and ankle. The professor was teaching a class in “stage movement” and had taken the class outdoors, where the students were asked to run across a lawn simulating fear. Several students performed the exercise before the plaintiff took her turn. As she was running, she encountered a small depression in the lawn, stumbled and fell, and was injured.
Although the jury had found for the plaintiff, the trial judge had entered judgment for the university, which the Supreme Court of West Virginia affirmed. The student had sought to demonstrate that the professor's supervision of the class was negligent, but the court disagreed. The professor had inspected the lawn area before the class and had not noticed the small depression. Furthermore, evidence showed that theater students at the university were given safety instructions and that the professor had discussed safety issues in that class. The syllabus included information on safety, including what clothing to wear, layering of clothing, and body positioning. The faculty member required students to wear high-top tennis shoes as a further safety precaution. The faculty member was present at the time of the student's injury, and the court found that no amount of supervision or scrutiny would have discovered the “small depression” that caused the student to fall. Therefore, said the court, the faculty member's actions were not a proximate cause of the injury, and the university itself was not required to maintain a lawn completely free of “small depressions.”
This case is notable because of the relatively high level of caution apparently displayed by the faculty member. Clearly, the safety instructions (which, since they were on the course syllabus, were easily proven) and the faculty member's statement that she inspected the lawn area prior to the class were important to the defense of this lawsuit. A similar degree of care could not be demonstrated in another case in New York, and this difference appears to have caused a very different result. In Loder v. State of New York, 607 N.Y.S.2d 151 (N.Y. App. Div. 1994), Alda Loder was enrolled in an equine studies course at the State University of New York at Cobleskill. It was her first such course. Each student was required to perform two weeks of “barn duty,” which included grooming a horse assigned to the student. When Ms. Loder approached the stall of the mare to which she was assigned and attempted to enter the stall, the mare kicked her in the face, causing serious injuries. The student sued, alleging that the university was negligent both in the way that the horse was tethered in the stall and in its failure to properly instruct the student with respect to how to enter the stall of a fractious horse.
The trial court had found the university 60 percent liable for the student's injury. The university appealed, but the appellate court sided with the student. First, said the appellate court, there was sufficient evidence of the horse's propensity to kick to suggest that the university was negligent in its method of tethering the horse. Furthermore, there were no written instructions on how to enter the horse's stall. The university employee who had shown the student how to enter the stall had used the incorrect procedure, according to an expert witness called by the university. Therefore, the court concluded, although the owner of a domestic animal normally is not responsible for injuries caused by that animal unless the animal is known to be “abnormally dangerous,” in these circumstances, the university was negligent both in failing to instruct the student regarding safety and in the method used to secure the horse.
The student in Loder was a beginning student, and her lack of familiarity or experience with horses was a significant factor. If a student is experienced, however, a court may be less sympathetic. In Niles v. Board of Regents of the University System of Georgia, 473 S.E.2d 173 (Ga. Ct. App. 1996), the plaintiff, a doctoral student in physics at Georgia Tech, was injured in a laboratory accident. The student had been working in the laboratory on a project related to a course in superconducting crystals and had been cleaning some equipment with a mixture of acetone, ethanol, and nitric acid, a highly explosive combination. A more senior doctoral student had suggested that “recipe” as a cleaning solution. Following the accident, the student asserted that the university, through his professor, was negligent in its failure to instruct him that this combination of substances was volatile.
The court was not sympathetic to the student's claim that he needed instruction. He had graduated summa cum laude with a major in chemistry and had obtained a master's degree in physics with a 4.0 average. He had spent “hundreds of hours” in laboratories, according to the court, and had previously worked with all three of the substances. Therefore, said the court, the professor had the right to assume that the student either would know of the dangers of these substances or would “perform the research necessary to determine those dangers and take the necessary precautions” (473 S.E.2d at 175). Therefore, the faculty member had no duty to warn the student about the dangers of mixing “common chemicals,” said the court. (For a similar case with the same result, see Fu v. University of Nebraska, 643 N.W.2d 659 (Neb. 2002).)
The defense of “assumption of risk” is routinely used against negligence claims, as a defendant argues that a plaintiff was fully aware of the risks of a particular course of action so that the defendant had no duty to warn the plaintiff of those dangers. In cases involving classroom instruction, however, this defense may have limited success. For example, in Drogaris v. Trustees of Columbia University, 743 N.Y.S.2d 115 (N.Y. App. Div., 2d Dept. 2002), the court denied a university's motion for summary judgment in a case in which a student enrolled in a graduate course in kinesiology (the study of movement) was injured after the course instructor used her for a physical demonstration of a clinical test. The student alleged that the instructor hyperextended her leg, resulting in a muscle tear. The court rejected the university's argument that the student assumed the risk of injury by participating in the class.
If the equipment that a college or university provides for a student's use is defective or incorrectly assembled and the student is injured as a result of an otherwise proper use of the equipment, it is likely that a court will find the school liable for negligence, even if it is in a state with a tort claims act. See, for example, Texas State Technical College v. Beavers, 218 S.W.3d 258 (Tex. App. 2007). And if an instructor allows a student to engage in potentially dangerous activities (here, welding metal with a torch) without supervision or proper protective clothing, the university may be held responsible for the student's injuries (Lei v. City University of New York, 823 N.Y.S.2d 129 (N.Y. App. Div. 2006)).
In physical injury claims related to classroom activities, courts seemingly will consider a student's knowledge level. If the student is a novice, as in Loder, Lei, Beavers, and Drogaris, there is likely to be a duty to instruct and supervise. If the student is experienced, however, and has knowledge that is similar to the knowledge of the professor, then the court may not find a duty to supervise or instruct. And, of course, the more an institution can demonstrate that safety precautions and safety training were carried out, the more likely the institution is to prevail.
In the aftermath of the tragic mass shootings that occurred in classrooms on the Virginia Tech campus in 2007, two families of deceased students sued the Commonwealth of Virginia for wrongful death (having elected not to participate in a special settlement fund established in the wake of the tragedy). A lower court awarded the families money damages under the state's tort claims act, finding that university officials owed the decedents a duty to be warned of potential risk of harm from the shooter, who had killed one student and critically wounded another in a dormitory before embarking on a killing spree at Norris Hall, an academic building. The university knew of the dormitory incident, and that the shooter had not been apprehended, but relied on police reports that the violence was an isolated crime, that the shooter had fled the area, and that no ongoing threat was posed to others.
In a high-profile decision, the lower court's award was overturned on appeal to the Supreme Court of Virginia. For the sake of argument, the court assumed that a special relationship existed between the university and its students. Even assuming such a relationship, the court held that the university was under no duty to warn students about the potential for criminal acts by third parties, as the risk posed was neither known nor reasonably foreseeable to the university. Commonwealth of Virginia v. Peterson, 286 Va. 349 (2013). See also Desir v. Mallett, 2015 WL 3492499 (Ct. App. Oh. 2015) (holding that defendant college owed no duty to warn or protect student who was stabbed by assailant in college's office).
In Regents of the University of California v. Rosen, 413 P.3d 656 (Cal. 2018), a UCLA student who had been attacked by another student with a kitchen knife during a chemistry laboratory sued the university and several UCLA employees, alleging that a special relationship existed between her and the university and that the university breached its duty of care by failing to adopt reasonable measures that would have protected her from the attacker's allegedly foreseeable violent conduct. The injured student claimed the attack was foreseeable to the university because the attacker had been treated by the institution for schizophrenia disorder and paranoid thinking several months prior to the attack. The attacker also had engaged in a non-violent physical confrontation with another student, which resulted in his expulsion from campus housing.
The trial court denied defendants' motion for summary judgment, concluding that defendants owed plaintiff a duty of care based on her status as a student or, alternatively, as a business invitee onto campus property. The intermediate appellate court came to the opposite conclusion, holding that “a public university has no general duty to protect its students from the criminal acts of other students.” 193 Cal.Rptr.3d 447, 451 (Cal. Ct. App. 2015).
Given the vocal dissent in the intermediate appellate court's decision, and the press attention the case received, perhaps it was inevitable that the Supreme Court of California would grant review of the case. 364 P.3d 174 (Cal. 2016). In a highly anticipated opinion, the court reversed, holding that “universities do have a legal duty, under certain circumstances, to protect or warn their students from foreseeable violence in the classroom or during curricular activities.” (413 P.3d at 663). Central to the court's decision is recognition that colleges and universities have a special relationship with students “while they are engaged in activities that are part of the school's curriculum or closely related to its delivery of educational services” (413 P.3d at 667).
3.2.2.4 Liability for injuries in off-campus courses. An increasing number of lawsuits seek to impose liability on colleges, universities, and their staff for injuries occurring during off-campus courses. Many graduate programs and an increasing number of undergraduate programs require some form of off-campus internship experience for students. Student teaching is required for students seeking degrees or licenses in education; social work students are typically required to complete a practicum in a social service agency; and students enrolled in health care–related programs may also have off-campus educational requirements. These experiences provide valuable opportunities for student learning but may create liability for a college or university, even if it has no real control over what the student encounters in the off-campus placement.
Liability for activities at an off-campus site can occur in several ways. For example, an institution may be responsible for maintaining the safety of premises it does not own if it schedules a course there. In Delbridge v. Maricopa County Community College District, 893 P.2d 55 (Ariz. Ct. App. 1994), a college offered a course in plant mechanics to employees of the Salt River Project (SRP) on the site of that organization. Although SRP employees performed the instruction, they were considered adjunct faculty of the college, and they were paid by the college. Individuals participating in the course were considered students of the college. As part of the course, the students were required to learn to climb a utility pole. The plaintiff, a student in the class, climbed the pole, lost his grip, fell, and was seriously injured. His lawsuit alleged negligence on the part of the college in not providing him with a safe environment.
The trial court awarded summary judgment to the college, but the appellate court reversed, ruling that there was a special relationship between the college and the student. Despite the fact that the premises were also under the control of SRP, said the court, the college also had a duty not to expose its students to an unreasonable risk of harm. Furthermore, the student was acting under the supervision of a college instructor. The case was remanded for a trial court's determination as to whether the college breached its duty to the plaintiff.
A significant decision by a Florida appellate court addressed the liability of a college to a student injured at the site of an off-campus internship. In Gross v. Family Services Agency and Nova Southeastern University, Inc., 716 So.2d 337 (Fla. Dist. Ct. App. 1998), the plaintiff had enrolled in the doctoral program in psychology at Nova Southeastern University. The program required her to complete an 11-month practicum at an off-campus organization. Nova gave each student a list of preapproved practicum sites, and students selected six possible sites. Nova controlled the placement of students at the sites. Gross was placed at Family Services Agency, approximately 15 miles from the university. One evening, while leaving the agency, Gross was assaulted by a man in the agency's parking lot and was injured. Previous assaults had occurred in the parking lot, a fact of which the university was aware but the student was not. The student sued the university for negligence in assigning her to an unreasonably dangerous internship site without adequate warning. She also sued the agency, which settled her claim.
Although the trial court awarded summary judgment to the university, stating that it had no duty to control the agency's parking lot, the appellate court reversed. The court rejected the trial court's determination that this was a premises liability case, characterizing the college's duty as one of exercising “reasonable care in assigning [the student] to an internship site, including the duty to warn her of foreseeable and unreasonable risks of injury” (716 So.2d at 337). The court characterized the relationship between the student and the university as “an adult who pays a fee for services [the student] and the provider of those services [the university].” Therefore, said the court, the university had a duty to use ordinary care in providing educational services and programs. If the student was injured by the acts of a third party, then the university would be liable only if a special relationship existed. The court ruled that a special relationship did exist in this situation, relying upon a case involving litigation by a British tourist who sued a car rental company for failure to warn customers about the risk of crime in certain areas of Miami. The car agency's knowledge of the risk of crime, and the fact that the tourist was not from the United States, created a special duty, said that court, to warn the foreign tourist of “foreseeable criminal conduct” (Shurben v. Dollar Rent-A-Car, 676 So.2d 467 (Fla. Dist. Ct. App. 1996)). So, too, the university had a duty to warn the student of the risk of assault, given its knowledge that previous assaults had occurred in the vicinity.
The Supreme Court of Florida affirmed the appellate court's ruling on the issue of the university's duty to warn the student (Nova Southeastern University v. Gross, 758 So.2d 86 (Fla. 2000)). In addition to agreeing with the appellate court's reasoning that the university had assumed a duty of “acting reasonably in making [those] assignments” to a specific location, the court declared: “There is no reason why a university may act without regard to the consequences of its actions while every other legal entity is charged with acting as a reasonably prudent person would in like or similar circumstances” (758 So.2d at 90). The court stated that the college's duty was one of reasonableness in assigning students to practicum locations, a duty that required the university to warn students of potential dangers posed by that location.
Universities and their employees may also face negligence liability claims for actions by third parties at off-campus locations. In Rinsky v. Trustees of Boston University, 2010 U.S. Dist. LEXIS 136876 (D. Mass. December 27, 2010), a social work student was required to complete an internship at a social service agency as part of her academic program. The student notified both the faculty supervisors and the on-site supervisor that a client was physically touching and stalking her. She alleged that neither the on-site supervisor nor the faculty members took action either to stop the offensive touching or to assign her to a different internship. She sued both the agency and the university for sexual harassment, negligence, and several other tort claims. The court rejected the university's motion to dismiss the student's negligence and sexual harassment claims.
For negligence liability purposes, then, whether the location at which a student or staff member is injured is on or off campus is not the controlling issue. What is more important, according to these cases, is whether the college took adequate precautions to ensure the safety of its students, even if it did not have total physical control of the site.
Simply because a student has an off-campus assignment does not mean that the college assumes a duty to ensure that the student arrives at the off-campus location safely. In Stockinger v. Feather River Community College, 4 Cal. Rptr. 3d 385 (Cal. Ct. App. 2003), a student who was injured when she was riding to an off-campus assignment in the back of a classmate's pickup truck sued the college and the course instructor for negligence in planning and supervising the class assignment. The court rejected her claim, ruling that “a college must be able to give its students off-campus assignments, without specifying the mode of transportation, and without being saddled with liability for accidents that occur in the process of transportation” (4 Cal. Rptr. at 401).
Study abroad programs may present liability issues for colleges as well. Since the mid-1990s, several colleges have been sued by students, or their families, for injuries or deaths to students participating in study abroad programs. Although the courts have rejected claims that a college that sponsors a study abroad program is the insurer of students' safety, the courts are imposing a duty of reasonable care on colleges and universities that requires them to take steps to protect students, faculty, and staff from reasonably foreseeable harm. Particularly if the program takes place in a country, or in a portion of a country, that is deemed unsafe or prone to criminal activity, considerable precautions will need to be taken by the college.
For example, St. Mary's College (a public college in Maryland) settled a lawsuit filed by three students who were injured during a study abroad trip to Guatemala. While a group of 13 students, two faculty members, and the study abroad director were returning by bus to Guatemala City from a trip to a rural area, the bus was stopped by armed bandits and robbed. Five of the students were raped. Three of the students sued the college, arguing that insufficient precautions were taken for their safety and that additional precautions, such as an armed guard, a convoy of several vehicles, and the selection of a safer route would have prevented the injuries. The college argued that sufficient precautions had been taken and that, because previous study abroad trips to Guatemala had been uneventful, the injuries were not foreseeable. However, the college settled with the plaintiffs in order to avoid prolonging the dispute.
A student was unsuccessful in persuading a Minnesota court to impose liability on the University of Minnesota for an assault by a taxi driver in Cuernavaca, Mexico, where the student was participating in a study abroad program. In Bloss v. University of Minnesota, 590 N.W.2d 661 (Minn. Ct. App. 1999), the student asserted that the university was negligent in not obtaining housing closer to the location of the classes, in not providing safe transportation to and from campus, and in not warning the students about the possibility of assault. The court ruled that governmental immunity protected the university from liability for its decision to use host families to house the students. But with respect to the student's allegations concerning safety issues, immunity would not protect the university if it had breached its duty in that regard. In this case, however, the court ruled that the university had behaved reasonably. There was no history of assaults on students or tourists in the 18 years that the program had operated in Cuernavaca. Students had been given a mandatory orientation session on safety and had been told not to hail a taxi on the street (which the student had done), but to call a taxi company. The assault occurred when the student took a taxi to meet friends—not to attend class. Given the university's efforts to warn students and the lack of foreseeability of the assault, the court refused to impose liability on the university. For a case with similar facts and the same outcome, although based upon sovereign immunity, see Mattingly v. University of Louisville, 2006 U.S. Dist. LEXIS 53259 (W.D. Ky. July 28, 2006).
3.2.2.5 Liability for cocurricular and social activities. In addition to potential premises liability claims, an individual injured as the result of a college- or university-sponsored event, or as a result of activity that is allegedly related to school activities, may attempt to hold the college or university liable for negligence.
For example, in Bishop v. Texas A&M University, 35 S.W.3d 605 (Tex. 2000), a student participating in a university-sponsored play was stabbed accidentally during a performance of Dracula. The play was directed by a nonemployee, but two faculty members served as advisors to the student production. Although the state appellate court found the university immune from liability under the state's tort claims act because the faculty members were not acting within their job responsibilities of teaching, the Texas Supreme Court reversed. The court said that, although the faculty advisors were volunteers, their participation as advisors was considered when salary increase decisions were made, the drama club was required to have a faculty advisor as a condition of receiving university recognition, and university policies required the faculty advisors to enforce its rules and regulations. The high court ruled that a jury could potentially find that the faculty advisors were negligent and thus that the university was liable to the injured student. On remand, the trial court found that the advisors were not protected by governmental immunity and that they were negligent in supervising the students. A state appellate court affirmed in Texas A&M University v. Bishop, 105 S.W.3d 646 (Tex. App. 2002). However, the Texas Supreme Court reversed, ruling that the university had not waived its sovereign immunity because the conduct of the faculty advisors did not fall within a statutory exception to immunity, and the director was not an employee of the university (156 S.W.3d 580 (Tex. 2005)). In a case with very similar facts, a Kansas appellate court ruled that the state's tort claims act shielded Pittsburgh State University from liability for a student's injury (Tullis v. Pittsburg State University, 16 P.3d 971 (Ct. App. Kan. 2000)).
If a cocurricular activity is not sponsored or supervised by the institution, it is unlikely that a court will find that the institution has a duty to protect the student from injury. Or if the student is pursuing private social activities that the institution has not undertaken to supervise or control, a court may find that no duty exists. In University of Denver v. Whitlock, 744 P.2d 54 (Colo. 1987), for example, the Supreme Court of Colorado reversed a $5.26 million judgment against the University of Denver for a student who became a quadriplegic as the result of a trampoline accident.
The accident in Whitlock occurred in the front yard of a fraternity house on the university campus. The university had leased the land to the fraternity. Whitlock asserted that the university had a duty, based on a “special relationship,” to make sure that the fraternity's trampoline was used only under supervised conditions. The special relationship, Whitlock asserted, arose either from his status as a student or the university's status as landowner and lessor to the fraternity. But the court held that the university's power to regulate student conduct on campus did not give rise to a duty to regulate student conduct or to monitor the conduct of every student on campus. Citing earlier cases in which no duty to supervise social activity was found (including Bradshaw v. Rawlings), the court concluded that the university did not have a special relationship based merely on the fact that Whitlock was a student. Inspection of the lease between the university and the fraternity disclosed no right to direct or control the activities of the fraternity members, and the fire inspections and drills conducted by the university did not create a special relationship.
Similarly, in Guest v. Hansen, 603 F.3d 15 (2d Cir. 2010), a federal appellate court ruled that staff of Paul Smith's College (a private college) did not have a duty to protect a student or his guest from injuries sustained in a snowmobile accident. The college was located on a lake, which the college did not own. Students had a practice of building bonfires on the frozen lake and using it as a location for consuming alcohol. A student and his guest went for a snowmobile ride around the lake; the student's blood-alcohol content at the time was over 0.11 percent. The snowmobile crashed and the two were killed. The guest was 20 years old and not under the influence of alcohol at the time of the accident.
The guest's father sued Paul Smith's College and its director of residence life for negligence, stating that college administrators knew that students were consuming alcohol and partying on the frozen lake and neither attempted to stop the partying nor enforced the college's alcohol policy. The court affirmed the trial court's ruling that neither the college nor the director of residence life owed the decedents a duty of care because they were not on property controlled by the college. Even if the college had the ability to control the off-campus activities of its students and their guests, said the court, it had no obligation to do so.
If an institution sponsors an activity such as intercollegiate sports, however, a court may find that a “special relationship” exists beyond that owed to invitees or to the general public. For example, in Kleinknecht v. Gettysburg College, 989 F.2d 1360 (3d Cir. 1993), a federal appellate court applying Pennsylvania law held that a special relationship existed between a college and a student who collapsed as a result of cardiac arrest and died during lacrosse practice, and that because of this special relationship the college had a duty to provide treatment to the student in the event of such a medical emergency.
In determining whether a duty exists, a court will consider whether the harm that befell the individual was foreseeable. In Kleinknecht, the court noted that the specific event need not be foreseeable, but the risk of harm must be both foreseeable and unreasonable. In analyzing the standard of care required, the court noted that the potential for life-threatening injuries occurring during practice or an athletic event was clearly foreseeable and thus the college's failure to provide facilities for emergency medical attention was unreasonable.
Even when an institution attempts to prohibit or to control inherently dangerous activities in which its students participate, a court may find that it has a duty to those students. In Furek v. University of Delaware, 594 A.2d 506 (Del. 1991), the Supreme Court of Delaware ruled that the university's pervasive regulation of hazing during fraternity rush created a duty to protect students from injuries suffered as a result of that hazing. Furek, who had pledged the local chapter of Sigma Phi Epsilon, was seriously burned and permanently scarred when a fraternity member poured a lye-based liquid oven cleaner over his back and neck as part of a hazing ritual. After he withdrew from the university and lost his football scholarship, he sued the university and was awarded $30,000 by a jury, 93 percent of which was to be paid by the university and the remainder by the student who poured the liquid on Furek.1
The university asserted on appeal that it had no duty to Furek. While agreeing that “the university's duty is a limited one,” the court was “not persuaded that none exists” (594 A.2d at 517). Rejecting the rationales of Bradshaw and its progeny, the court used a public policy argument to find that the university did have a duty:
It seems…reasonable to conclude that university supervision of potentially dangerous student activities is not fundamentally at odds with the nature of the parties' relationship, particularly if such supervision advances the health and safety of at least some students [594 A.2d at 518].
Although it refused to find a special duty based on the dangerous activities of fraternities and their members, the court held that:
Certain established principles of tort law provide a sufficient basis for the imposition of a duty on the [u]niversity to use reasonable care to protect resident students against the dangerous acts of third parties… [W]here there is direct university involvement in, and knowledge of, certain dangerous practices of its students, the university cannot abandon its residual duty of control [594 A.2d at 519–20].
The court determined that the university's own policy against hazing, and its repeated warnings to students against the hazards of hazing, “constituted an assumed duty” (594 A.2d at 520). Relying on Section 314A of the Restatement (Second) of Torts, the court determined that the “pervasive” regulation of hazing by the university amounted to an undertaking by the university to protect students from the dangers related to hazing and created a duty to do so.
Because the outcomes in cases involving injuries related to cocurricular or social events are particularly fact sensitive, it is difficult to formulate concrete suggestions for avoiding or limiting legal liability. The cases seem to turn on whether the court believes that the injury was foreseeable. For example, in Knoll v. Board of Regents of the University of Nebraska, the court refused to award summary judgment to a university when a student attempted to hold the university responsible for the injuries he sustained during hazing in a fraternity house, which, under university policy, was considered student housing controlled by the university. The court ruled that the kidnapping and hazing of a student by a fraternity known to have engaged in prior acts of hazing could have been foreseen by the university. A Louisiana court reacted similarly in Morrison v. Kappa Alpha Psi Fraternity, 738 So.2d 1105 (La. Ct. App. 1999).
On the other hand, a federal district court refused to find institutional liability for the death of a first-year student who fell from a cliff during a social event sponsored by a student organization. In Apfel v. Huddleston, 50 F. Supp. 2d 1129 (D. Utah 1999), the court reaffirmed the teachings of Beach and dismissed the complaint, stating that institutions generally will not be held liable for injuries that occur off campus and that are not part of the academic program. Particularly when the injury is alleged to have resulted, at least in part, from the intoxication of the injured student or other individual, the court will examine closely the degree to which the college supervised the social or cocurricular event (or had undertaken the responsibility to do so), the reasonableness of the injured individual's behavior, and the relationship between acts or omissions of the college and the subsequent injury. This is particularly true of litigation involving injuries that are a result of hazing related to fraternity or other social organizations.
A case decided by the U.S. Court of Appeals for the Eighth Circuit illustrates the continuing influence of Bradshaw and Beach and some courts' continuing reluctance to find a special relationship that would create a duty on the college's part to protect students from their own risky behavior. In Freeman v. Busch, 349 F.3d 582 (8th Cir. 2003), a female student was sexually assaulted after consuming alcohol at a private party in a college dorm room. She sought to hold the college and the resident advisor liable for negligence because the resident advisor, who had been told that she was intoxicated and unconscious, did nothing to assist her. The court refused to find that a college has a “custodial duty” to protect an adult college student, and affirmed the trial court's summary judgment ruling for the college and the resident advisor.
Additional sources of liability may arise in states where case or statutory law establishes civil liability for private hosts who furnish intoxicating beverages (see Kelly v. Gwinnell, 476 A.2d 1219 (N.J. 1984), and Bauer v. Dann, 428 N.W.2d 658 (Iowa 1988)) or for retail establishments that sell alcohol to minors. Sponsors of parties at which intoxicants are served, particularly to minors, could be found negligent under the social host doctrine. A court in such a jurisdiction could rely on this law to impose a legal duty on the institution when alcohol is served at college-sponsored activities. Many states also have Dram Shop Acts, which strictly regulate licensed establishments engaged in the sale of intoxicants and impose civil liability for dispensing intoxicants to an intoxicated patron. A college or university that holds a liquor license, or contracts with a concessionaire who holds one, may wish to enlist the aid of legal counsel to assess its legal obligations as a license holder.
3.2.2.6 Student suicide. According to the U.S. Centers for Disease Control, suicide is the third-leading cause of death in the United States among individuals between the ages of 15 and 24,2 and it is the second leading cause of death for college students.3 Data collected in 2015–16 indicated that an increasing number of students have considered or attempted suicide.4
Several high-profile lawsuits, some of which have been resolved against institutions of higher education, make it clear that faculty and administrators must take this issue very seriously, become educated about the warning signs of a potential suicide, and ensure that proper actions are taken if a student exhibits those signs (see, e.g., Andrew Casler, “Cornell student bridge-suicide lawsuit settled,” Ithaca Journal, Sept. 11, 2014, available at http://www.ithacajournal.com/story/news/local/2014/09/11/cornell-student-suicide-lawsuit-settled/15442299/). Although courts in the past refused to create a duty to prevent suicide, holding that it was the act of the suicide victim that was the proximate cause of the death, more recently courts are beginning to find, under certain circumstances, a duty to prevent the suicide or a duty to warn appropriate individuals that a student is a suicide risk.
In a series of lawsuits concerning the potential liability of a college or university for the suicide of a student, plaintiffs have attempted to persuade courts to find a “duty to warn” parents or others of potential dangers to students or a “special relationship” that requires the college to prevent the harm. In Jain v. State of Iowa, 617 N.W.2d 293 (Iowa 2000), the state supreme court rejected the claims of the parents of a student who committed suicide that a “special relationship” between the university and the student required the university to notify the parents of a student's “destructive” behavior. Unlike the outcome of the Tarasoff case (discussed in Section 4.4.2.2), the Iowa court ruled that the failure of university staff to warn the student's parents did not increase the risk of his committing suicide; university staff had encouraged him to seek counseling and had asked him for permission to contact his parents, which he had refused.
More recently, however, courts have found that, under certain circumstances, there may be a duty to take “affirmative action” to prevent a student from harming himself. In Schieszler v. Ferrum College, 236 F. Supp. 2d 602 (W.D. Va. 2002), the aunt of a college student, Michael Frentzel, sued the college, the dean of student affairs, and a resident assistant for wrongful death after the student committed suicide by hanging himself. Frentzel had a history of disciplinary problems during his freshman year, and the college had required him to enroll in anger management counseling. After completing the counseling, Frentzel had an argument with his girlfriend, and the campus police and Frentzel's resident assistant were called. At the same time, Frentzel sent the girlfriend a note indicating that he planned to hang himself. The campus police and resident assistant were shown the note. Frentzel wrote several notes over the next few days, but the police and residence hall advisor took no action, except to forbid the girlfriend to see Frentzel. Frentzel hanged himself three days after the initial altercation.
The plaintiff claimed that a special relationship existed between Frentzel and the college that created a duty to protect him from harm about which the college had knowledge. The defendants asked the court to dismiss the claim, stating that there was no duty to prevent Frentzel from harming himself. The court concluded that, because college employees knew of Frentzel's threats to kill himself, the self-inflicted injuries, and his history of emotional problems, the plaintiff had alleged sufficient facts to support a claim that a special relationship existed, which created a duty to protect Frentzel from “the foreseeable danger that he would hurt himself.” The court also ruled that the plaintiff had alleged sufficient facts to support her claim that the defendants breached their duty to Frentzel. Although the court dismissed the claim against the resident assistant, it ruled that a wrongful death action could be maintained against the college and the dean. The college later settled the case.
A trial court in Massachusetts ruled in 2005 that a special relationship could exist between a student and university staff in a case in which staff knew a student to be suicidal (Shin v. Massachusetts Institute of Technology, No. 020403 (Mass. Cmmw. June 27, 2005)), and thus denied the university's motion for summary judgment on several of the claims. The case ended in a settlement with no ruling on the merits (“Agreement Reached by MIT and the Shin Family,” http://news.mit.edu/2006/lawsuit-statement). In 2018, the Supreme Judicial Court of Massachusetts, in Nguyen v. Massachusetts Institute of Technology et al., 96 N.E.3d 128 (Mass. 2018), ruled that, although there is no general duty to prevent another person from committing suicide, under certain circumstances a special relationship may be created that imposes “affirmative duties of reasonable care in regard to the duty to rescue, including the duty to prevent suicide” (96 N.E.3d at 139). In some cases, according to that court, a university would have a special relationship with a suicidal student that would compel the university to take affirmative action to prevent the student from self-harm.
In Nguyen, a 25-year-old graduate student at MIT with a history of mental health problems and two prior suicide attempts committed suicide after being criticized by a faculty advisor. The student had not advised his professors of his previous suicide attempts and had told all of his mental health providers that he was not contemplating suicide. He insisted that his academic difficulties were related to test anxiety and insomnia and, although he told his professors that he was seeing a mental health provider, he refused to allow anyone at MIT to obtain information about his treatment or mental health challenges. After the student's suicide, the student's father sued MIT and two of the professors who had been advising the student on academic matters, accusing them of negligence for failing to prevent his son's death. A trial court awarded summary judgment to the defendants—MIT and the student's professors—(2012 Mass. Super. LEXIS 146 (Mass. Super. April 30, 2012)) and the father appealed.
The court addressed the nature of the student-institution relationship in its analysis of whether a special relationship existed between the university and its professors, on the one hand, and the student on the other. If a special relationship existed, the court explained, then there could have been a duty to prevent the student's suicide.
Citing the Restatement (Second) of Torts § 314A, the court explained that if a defendant does not know nor should have known that the individual had attempted or was contemplating suicide, the defendant would not be liable. Noting that universities “are not bystanders or strangers in regards to their students” (96 N.E.3d at 140), they “are not responsible for monitoring and controlling all aspects of their students' lives” (96 N.E.3d at 141). The court also noted that students are adults and that university recognition of their right to autonomy and privacy is appropriate. The court noted that the privacy of mental health records in particular is both important and protected by law (see the discussion of FERPA in Chapter 8 of this book).
The court enumerated several factors that are used to determine whether a special relationship exists such that there is a duty to prevent a suicide. First, could a defendant reasonably anticipate harm to the plaintiff from failing to take protective action? Second, was there reasonable reliance by the plaintiff on the defendant such that others who might attempt to help were impeded? Third, the degree of certainty of harm to the plaintiff; fourth, the burden on the defendant to take reasonable steps to prevent the injury; fifth, mutual dependence of the plaintiff and defendant on each other; sixth, moral blameworthiness of the defendant's conduct in failing to act; and seventh, social policy considerations involved in placing the economic burden of the loss on the defendant.
The court concluded 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, the university has a duty to take reasonable measures under the circumstances to protect the student from self-harm [96 N.E.3d at 142–43].
The court further explained that the duty is created by foreseeability of the student's intent to commit suicide. “Nonclinicians are…not expected to discern suicidal tendencies where the student has not stated his or her plans or intentions to commit suicide… 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” (96 N.E.3d at 144).
The court concluded that no duty had been created in this case. Nguyen had not told any MIT staff that he had “stated plans or intentions” to commit suicide, and his earlier suicide attempts, about which his professors were unaware, had occurred more than a year before he matriculated at MIT. None of the student's medical providers considered him suicidal, and his professors, who were not trained clinicians, could not be expected to intuit his intent. Therefore, no special relationship was created, and the court affirmed the lower court's award of summary judgment to the defendants on the tort claims.
Similarly, an Ohio appeals court concluded that Wright State University did not have a special relationship with a student who committed suicide because the student did not rely on the university. Reliance on the institution by a student to protect him from harm, including self-harm, is a required element of the special relationship analysis. In Connor v. Wright State University, 2013 Ohio App. LEXIS 5988 (Ct. App. Ohio Dec. 24, 2013), the parents of a student who committed suicide sued the university after their son inhaled a lethal dose of helium. Their son, Nathan, had attempted suicide two months earlier; on the second occasion when the university police received an anonymous call that Nathan was preparing to commit suicide by inhaling helium, the police went to his residence and spoke with him. Nathan assured them that he did not plan to commit suicide and that the helium was intended to blow up balloons for a party. The police determined that Nathan was not at risk and left. The court rejected the parents' claim.
A widespread misconception among college administrators is that the Family Educational Rights and Privacy Act (FERPA, discussed in Chapter 7) prevents college administrators from contacting parents or other relatives, or other college staff, if a student is threatening suicide. FERPA contains an exception for emergencies, including those involving health and safety. Furthermore, there is no private right of action under FERPA since the decision of the U.S. Supreme Court in Doe v. Gonzaga University. Therefore, a proactive stance could both save the lives of students and protect the institution against legal liability.
3.2.3 Educational malpractice and related claims. Another potential source of negligence liability, albeit a generally unsuccessful one for plaintiffs, is the doctrine of “educational malpractice.” The claim arises from the duty assumed by a professional not to harm the individuals relying on the professional's expertise.
Although courts often sympathize with students who claim that they have not learned what they should have learned or that their professors were negligent in teaching or supervising them, courts have been reluctant to create a cause of action for educational malpractice. In Ross v. Creighton University, 740 F. Supp. 1319 (N.D. Ill. 1990), the trial judge dismissed the claim by a former athlete that the university had negligently failed to educate him, although it did allow a contract claim to survive dismissal. Asserting that the university's curriculum was too difficult for him, the former basketball player argued that Creighton had a duty to educate him and not simply allow him to attend while maintaining his athletic eligibility. The judge disagreed, ruling that the student was ultimately responsible for his academic success. The appellate court affirmed (957 F.2d 410 (7th Cir. 1992)).
Individuals claiming to have been harmed by students whose instruction was inadequate have also failed in their claims of educational malpractice. In Moore v. Vanderloo, 386 N.W.2d 108 (Iowa 1986), the plaintiff was a patient injured by a chiropractor trained at Palmer College of Chiropractic. The patient sued the college, claiming that the injuries were a result of the chiropractor's inadequate training. After reviewing cases from other jurisdictions, the Iowa Supreme Court decided against permitting a cause of action for educational malpractice.
The court gave four reasons for its decision:
1 There is no satisfactory standard of care by which to measure an educator's conduct.
2 The cause of the student's failure to learn is inherently uncertain, as is the nature of damages.
3 Permitting such claims would flood the courts with litigation and would thus place a substantial burden on educational institutions.
4 The courts are not equipped to oversee the day-to-day operation of educational institutions.
Citing Moore, a Missouri appellate court awarded summary judgment to a flight school that was sued for negligence after a plane, piloted by a student trained at the school, crashed, killing him and four passengers. The court in Dallas Airmotive v. Flightsafety International, Inc., 277 S.W.3d 696 (Mo. Ct. App. 2008) characterized the lawsuit, brought by the relatives of the individuals killed in the crash, as a claim for educational malpractice and stated that there was no duty on the school's part to protect students from harm related to negligent instruction. An Ohio appellate court refused to consider educational malpractice claims as well (Trutschel v. Kettering Medical Center, 2009 Ohio App. LEXIS 2862 (Ohio Ct. App. July 2, 2009)).
In addition to attempting to state claims of educational malpractice, students have turned to other theories in an attempt to recover for injuries allegedly incurred by relying on incorrect advice of academic advisors. In Hendricks v. Clemson University, 578 S.E.2d 711 (S.C. 2003), the South Carolina Supreme Court reversed the ruling of a state appellate court that would have allowed the plaintiff, a student-athlete who lost eligibility to play baseball because of the incorrect advice he received from an academic advisor, to state claims of negligence, breach of contract, and breach of fiduciary duty. The court rejected the student's argument that the university had affirmatively assumed a duty of care when it undertook to advise him on the courses necessary for National Collegiate Athletic Association eligibility, finding no state law precedents that recognized such a duty. The court also refused to recognize a fiduciary relationship between the student and the advisor, and similarly rejected the breach of contract claim, finding no written promise by the university to ensure the student's athletic eligibility.
Another case, however, demonstrates a court's willingness to entertain student negligence claims for specific acts of alleged misfeasance or nonfeasance. In Johnson v. Schmitz, 119 F. Supp. 2d 90 (D. Conn. 2000), a doctoral student sued Yale University and several faculty members, alleging that the chair of his dissertation committee had misappropriated the student's idea for his dissertation research and took credit for it himself. The student filed claims of negligence, breach of contract, breach of a fiduciary duty, and defamation. The breach of contract claim was premised on the argument that Yale had made both express and implied promises to “safeguard students from academic misconduct” (119 F. Supp. 2d at 96). The court refused to dismiss the negligence claim, stating that because the student was alleging intentional misconduct by the faculty members, it was not an educational malpractice claim. The court ruled that the student should be given an opportunity to demonstrate that Yale had a duty to protect him against faculty misconduct and that such misconduct was foreseeable. Similarly, the court refused to dismiss the claim that Yale had a fiduciary duty to the student, stating: “Given the collaborative nature of the relationship between a graduate student and a dissertation advisor who necessarily shares the same academic interests, the Court can envision a situation in which a graduate school, knowing the nature of this relationship, may assume a fiduciary duty to the student” (119 F. Supp. 2d at 97–98).
Another student claim related to educational malpractice is negligent misrepresentation or fraud. These claims tend to be brought by students claiming that an institution misled applicants or current students about the quality of its programs or the institution's accreditation status. For example, in Troknya v. Cleveland Chiropractic Clinic, 280 F.3d 1200 (8th Cir. 2002), a federal appellate court upheld a jury verdict that a chiropractic school was liable to students for negligent misrepresentation. The plaintiffs, graduates of the school, claimed that it had failed to provide the quality and quantity of clinical training that the school had promised; they filed claims of breach of contract, fraud, and negligent misrepresentation. The plaintiffs had graduated, passed the licensing exam, and had received licenses.
The jury found for the college on the breach of contract and fraud claims but found for the plaintiffs on the negligent misrepresentation claims, awarding each plaintiff $1 in compensatory damages and $15,000 each in punitive damages. Although the court upheld the compensatory damages award, it reversed the punitive damages award, stating that there was no evidence that the school knew that the false information it provided would have injured the students.
3.2.4 Defamation. Another tort asserted against postsecondary institutions, defamation, is committed by the oral or written publication of information that tends to injure a person's reputation. The information must have been communicated to some third person and must have been capable of defamatory meaning, and understood as referring to the plaintiff in a defamatory sense. Defamation claims are also asserted against officials of the institution, such as deans or department chairs, and even occasionally against students.
Defamation claims may be brought against faculty who write letters of reference for students or in the context of giving a (negative) evaluation of a student or subordinate. In such cases, the alleged defamer may be protected by the “opinion privilege” if the communication provides an opinion rather than reciting or implying facts. Defamation claims may also arise when an individual testifies in an internal grievance or appeal hearing. In most cases, courts have rejected defamation claims against institutions, although in some cases they have been more sympathetic to plaintiffs who sue individuals for defamation.
Several privileges can be raised by institutional defendants in defamation cases. One of the most important defenses against a defamation action is the conditional or qualified privilege of fair comment and criticism. An application of this privilege occurred in Olsson v. Indiana University Board of Trustees, 571 N.E.2d 585 (Ind. Ct. App. 1991). A prospective teacher, who had graduated from the university and had performed her student teaching under the supervision of one of its faculty, sued the university, claiming that a letter of reference written by a faculty member was libelous. The faculty member had described both the plaintiff's strengths and weaknesses with apparent candor.
The court ruled that the faculty member and the university were protected by a qualified privilege that may be asserted “if a need exists for full and unrestricted communication regarding matters on which the parties have a common interest or duty” (571 N.E.2d at 587). Such a privilege would cover any communication “if made in good faith on any subject matter in which the party making the communication has an interest or in reference to which he has a duty, either public or private, whether legal or moral, or social, if made to a person having a corresponding interest or duty” (571 N.E.2d at 587). Noting that the university had a responsibility to prepare teachers, the court ruled that this letter of recommendation was an appropriate occasion for the use of the qualified privilege.
The scope of the qualified privilege is a matter of state law and may differ by state. A case decided by a federal trial court, applying District of Columbia law, examined that jurisdiction's case law regarding the qualified privilege in a defamation claim. In Tacka v. Georgetown University, 193 F. Supp. 2d 43 (D.D.C. 2001), a faculty member, Tacka, sued Georgetown University for breach of contract and defamation. His defamation claim was based on the use of an allegedly defamatory evaluation of his scholarly work by a faculty rank and tenure committee that was considering whether to recommend that Tacka receive tenure. The evaluation, written by an untenured professor at a university in another state, accused Tacka of plagiarizing portions of a journal article. Without determining whether the plagiarism claim was true, the rank and tenure committee recommended against tenure for Professor Tacka. Later, the University's Research Integrity Committee exonerated Tacka of plagiarism, and he was granted tenure the following year.
In its motion for summary judgment, the university claimed that the department chair's “publication” of the allegedly defamatory external evaluation to the rank and tenure committee was protected by a qualified privilege. The trial court ruled that the qualified privilege could be lost if the plaintiff could demonstrate that the publisher acted with malice or published the evaluation beyond those who had a business reason for receiving the information. Tacka had alleged that the department chair's decision to solicit the sole external evaluation of his work from an individual who held a personal bias against him, and who was allegedly unqualified to perform the evaluation, demonstrated that the chair had acted with malice. The court ruled that Tacka should have the opportunity to have a jury decide whether the privilege was lost.
Although an individual who testifies in court is protected from defamation liability by an absolute privilege, a court determined that statements made in an internal grievance hearing are not protected by such a privilege. In Overall v. University of Pennsylvania, 412 F.3d 492 (3d Cir. 2005), the plaintiff sued the University and a department chair for defamation and sex discrimination when she was not hired for a tenure track position. Although the trial court ruled that the allegedly defamatory statements made by the department chair during a grievance hearing involving the University's decision not to hire her were privileged, the appellate court disagreed. Because the University was private, the appellate court ruled that the grievance hearing was not a “quasi-judicial” proceeding and thus the privilege did not apply. The court remanded the plaintiff's defamation claim to the trial court.
Another conditional privilege that is important for administrators in state institutions is the privilege afforded to executive and administrative officers of government. In Shearer v. Lambert, 547 P.2d 98 (Or. 1976), an assistant professor at Oregon State University brought a libel action against the head of her department. While admitting that the statement was defamatory, the defendant argued that the privilege of government officers should be extended to lesser executive or administrative officers, such as the head of a department. The court agreed, reasoning that, since “the privilege is designed to free public officials from intimidation in the discharge of their duties, we are unable to explain why this policy would not apply equally to inferior as well as to high-ranking officers.” This qualified privilege is available, however, only where the defendant “publishes the defamatory matter in the performance of his official duties.”
If a defamation lawsuit is brought against an institution by a prominent administrator, trustee, or faculty member, a constitutional privilege may come into play. If the plaintiff is a “public figure,” he or she must prove that the defendant acted with “actual malice,” and the privilege to defame is thus broader than it would be if the plaintiff were a “private figure.” If a person is a public figure, another person may not be held liable for defaming him unless that other person's comment “was made with knowledge of its falsity or in reckless disregard of whether it was false or true” (Garrison v. Louisiana, 379 U.S. 64, 74 (1964)). Thus, to the extent that members of the academic community can be characterized as public figures, the institution's potential liability for defamation is reduced. It is unlikely on any given campus at any particular time, however, that many administrators, staff, or faculty would be considered public figures.
But student-athletes or coaches may be considered public figures because of extensive press coverage or school-sponsored promotional activities. Furthermore, statements made concerning coaches or athletes are typically considered to be statements of opinion. For example, in two illustrative cases, coaches' defamation claims were unsuccessful because courts ruled that the statements made about the coaches were statements of opinion, rather than fact, and thus did not meet the legal standard for defamation. In the first, Moore v. University of Notre Dame, 968 F. Supp. 1330 (N.D. Ind. 1997), a former offensive line football coach was terminated, according to the university, because he had behaved abusively toward the players. In the second, Campanelli v. The Regents of the University of California, 51 Cal. Rptr. 2d 891 (Cal. Ct. App. 1996), university officials stated that the coach was fired because parents felt that he was placing their children under so much pressure that the children were becoming ill. In both cases, the courts ruled that neither statement was a factual assertion and, therefore, could not form the basis for a defamation claim. See also McGarry v. University of San Diego, 64 Cal. Rptr. 3d 467 (Cal. Ct. App. 2007), concerning a defamation claim brought by a coach against the university and the director of athletics; the court ruled that the alleged defamer had not acted with malice and that her statement, which could be interpreted as an assertion of immoral behavior, was an opinion and thus not actionable.
In many jurisdictions, truth is an affirmative defense to a defamation claim. In an unreported case, Morrison v. Chatham University, No. 16-476, 2016 WL 4701460 (W.D. Pa. 2016), a former student claimed she was dismissed from a doctoral program in counseling psychology because of allegedly defamatory statements that falsely accused her of plagiarizing a paper. Citing precedent that truth is an affirmative defense to defamation claims in Pennsylvania, a federal district court dismissed the plaintiff's defamation claim.
Charges of sexual misconduct against students have provided multiple opportunities for defamation litigation against colleges. One of the more famous cases is Doe v. Gonzaga University, 24 P.3d 390 (Wash. 2001), reversed on other grounds, Gonzaga University v. Doe, 536 U.S. 273 (2002). In Doe, a university administrator overheard a student office assistant tell another student that John Doe, an education student in his senior year, had raped a female student. At the time, John Doe was doing his student teaching. The administrator and a fellow staff member, both involved in placement for student teachers, met with the student whose conversation they had overheard, but the alleged victim had not reported any assault and refused to meet with the administrators to discuss the alleged incident. Despite the fact that the alleged victim would not provide information or corroborate the assault claim, the administrators decided not to recommend Doe for teacher certification because of these allegations. They gave Doe a letter to that effect; when Doe and his parents asked about his appeal rights, they were told there were none.
John Doe sued Gonzaga and several administrators for defamation, negligence, and breach of contract. At trial, Doe testified that his sexual relationship with the female student was consensual; in a videotaped deposition, the alleged student victim denied that Doe had assaulted her and denied that she had made any accusatory statements to university staff. A jury awarded Doe $500,000 for defamation and an additional $655,000 in compensatory and punitive damages for other claims, including a claim brought under FERPA that the Supreme Court dismissed.
Although the appellate court reversed the jury's defamation verdict, the Washington Supreme Court reinstated that verdict but affirmed the appellate court's dismissal of the negligence claim, stating that the university had no duty to the education licensing authority to investigate the allegations of sexual assault; when there was no duty, said the court, there was no claim for negligence. With respect to the defamation claim, the court ruled that the administrators were not protected by a qualified privilege because they were not acting “in the ordinary course of their work” when they involved themselves in the allegations of the student whose conversation the administrators secretly overheard.
Institutions that publish allegedly defamatory material in official publications or operate computer networks may be sued for transmitted libelous statements. See, for example, Rudloe v. Karl, 899 So.2d 1161 (Fla. Dist. Ct. App. 2005), in which the court ruled that sovereign immunity did not protect Florida State University from being sued by an alumnus for printing an allegedly libelous article in an alumni newsletter. Computer service providers will often be immune from such liability, however, under 47 U.S.C. § 230 (see Section 7.5.3 of this book).
