Colleges’ Civil Liability Exposure Related to Student Safety
As in many areas of law, a college or university’s exposure to civil liability with respect to student injury has undergone constant change over the past half century. Most courts have ruled that colleges cannot be considered guarantors of student safety. Parents and students cannot be guaranteed that the student will not suffer harm on or near campus. Given the freedom that today’s students demand, this view can be considered necessary to allow colleges and universities to function with acceptable financial risk. However, the courts in many states still have not held the institutions liable to control foreseeable risks which are reasonable for the institution to confront and thereby limit injury. The courts have been especially reluctant in asserting duty when alcohol use leads to harm. This reluctance was recently repeated in the 2nd Circuit decisions, Guest v. Hansen, a case involving many questionable decisions by college personnel prior to two student deaths. Clearly, the Court drew a wide distinction between a moral obligation to act and legal duty when student safely is involved.
The status of the law related to a college’s responsibility for student safety is summarized below as it evolved over the past fifty years. The primary source is the legal treatise “Rights and Responsibilities of the Modern University: Who Assumes the Risks of College Life?” by Peter F. Lake and Robert C. Bickel.
Commentators describe the movement from institutional responsibility for safety as the end of the loco parentis area which existed in the 1950’s and prior. This view held that a college replaced the role of a parent when one entered an institution of higher education. The institution had virtually complete control over the behavior of students (subject to the limits that parents have in controlling the behavior of their own children) and thereby had similar obligation as a parent over safety issues.
This changed dramatically in the 1960’s and early 1970’s. Those of us around in the 1960’s remember the student protests and the general rebellion that spread across the nation’s institutions of higher education. Students left the 1960’s with their freedoms established, and the courts began to recognize this in their decisions related to student safety.
Bystander is the term that Bickel and Lake use to describe the judicial atmosphere in the 1970’s and early 1980’s. Four court cases were primarily responsible for the views related to responsibility for student safety that prevailed during this period, that in many states continue to this date. The facts of these cases can make any parent’s blood boil. They are summarized as follows:
1) In a 1979 case decided under Pennsylvania law, Bradshaw v. Rawlings involved an annual sophomore class picnic which was planned with the aid of a faculty advisor who co-signed a check for the purchase of alcohol. Being sophomores, most of the class were underage. The site of the party was off campus and the students supplied their own transportation to and from the party. While returning to campus, an intoxicated Bradshaw was in an automobile accident and suffered injuries which left him a quadriplegic. The appellate federal Circuit Court overturned the district court decision in favor of Bradshaw. The appellate court cited the new lack of ability for colleges to control student behavior to assert that they could not be held to be an insurer of student safety, even when college personnel actively participated in the arrangements which led to illegal and dangerous activities. Of course, colleges were pleased with this and these subsequent decisions.
2) A California case, Baldwin v. Zoradi (1981), involved a student who was injured in an automobile accident involving another student driver who became intoxicated in his dormitory. Again the appellate court, which in this case confirmed the lower court’s decision against the student plaintive, referred to the new found rights and freedom of students to remove the college from responsibility and exposure. This holding resulted despite noting lax enforcement of stated college policies involving alcohol use.
3) In Beach v. University of Utah (1986), a professor was present at an off-campus lamb roast held after a biology field trip where drinking occurred. The underage drinking continued on the van trip back to a camp site. Once at the camp site, a female student wandered off and fell off a cliff. The court refused to find existence of duty “because college students, who could vote and be tried as adults, were not juveniles.”
4) Probably the most disturbing of the four cases was Rabel v. Illinois Wesleyan University (1987). Rapel was a female student who was called to the lobby of her dorm by a male student who was involved with his fraternity’s initiation process. One initiation requirement along with significant drinking was to kidnap a co-ed and return her to the fraternity. Once in the lobby, Rabel was thrown over his shoulder. As he was running back to the fraternity, he tripped and fell. Rabel suffered serious, permanent head injuries. Although holding itself as a religious school with a safe and controlling environment, the court held that the college, along with all colleges had no duty for student safety and found in favor of Illinois Wesleyan.
If you were to match the holdings of these cases with parent expectations of a colleges’ responsibly to limit and control such behaviors, surely a wide divergence is present. Furthermore, if you compare marketing brochures, catalogues, statements at open houses, and other recruitment efforts by colleges and universities, you will find a similarly significant divergence from the holdings in these cases. However, upon a death or injury on campus, the victim and family will likely hear a message more reflective of the court cases than what was previously promised to them. This unfortunate, and unacceptable, state of affairs are directly traceable to these court cases.
These cases did more than relieve concern by colleges and universities that student injuries or even death would create civil liabilities. These cases framed institutional polices with respect to intervention in student safety issues. Legal advisors to colleges advised colleges that addressing student behavior issues may well extend liability where the courts have held that no liability exists if the institution does nothing. Therefore, a hands-off attitude with respect to student behavior and resultant safety issues existed, thereby justifying the “by stander era” label. Thankfully, this is changing in many states, but colleges and legal advisors are often too slow to adjust to the new legal climate.
During the same period as the four major by-stander decisions, several cases were identifying situations where holding colleges responsible for student safety is appropriate. Bickel and Lake refer to these as crosscurrent cases which set the stage for a more fair handed balance between expanding the institutional exposure and the need to address safety issues. Prime among these cases is Mullins vs. Manor Pine College (Mass. 1983) which held that the college had the duty to provide adequate security to prevent assaults in deciding in favor of the injured student plaintive.
In the 1990 to the present, courts in various states have began to widen the scope of the potential liability for student behavior. Two basis fact patterns have resulted in defendant success: 1) when a potentially dangerous physical condition exists (such as faulty locks on dorms) and repairs are not made, 2) when a prevailing dangerous practice is common by students (such as hazing in pledge initiations), it is known by college officials and addressed in policy statements, but reasonable efforts are not made to stop or limit such practices, and 3) officials are aware of a specific dangerous activity where injury results, but do not take reasonable steps to limit the possibility of the foreseeable danger.
Significant duty cases are:
1) Furek v. University of Delaware (1991) involved a hazing incident where oven cleaner poured on a pledge caused burns. The court held that since the university was aware of dangerous hazing practices and had policies and made statements towards limiting those practices, it could be held liable when reasonable steps were not taken to limit or control such practices. This case is significant both for holding the university responsible when they seemed further removed from the direct acts than at least three of the bystander cases and in that the court looked not only at the specific incident, but the overall circumstances and conditions at the college which led to the injury. The seems to be the start of applying a “totality of circumstances” analysis which was specifically cited in future cases in determining a college’s responsibility in a specific situation. This seems to have its precedent in the New York landlord/invitee case often cited around the country (Nallan v Helmsley-Spear, Inc).
2) In Coghlan v. Beta Theta Pi Fraternity (1999), a female pledge at the University of Idaho attended two fraternity drinking parties that was also attended by two Greek advisors employed by the university. An intoxicated Coghlan fell thirty feet from a fire escape. Reversing the lower court, the appellate court held that the university assumed a duty with the attendance at the party by the two advisors. Note the significant difference from the holdings in the Baldwin and Beach cases where university employees were also involved, but the holdings much different.
3) Two Indiana cases demonstrated how while applying of a totality of circumstances test, attachment of a duty requirement to universities can be held without necessarily attaching liability to the university in all cases. In L.W. v Western Gulf Assn. (1999) a Purdue University student was raped in a dorm after returning from bar. The court evaluated the overall environment at the university which indicated that life at the dorm was not entirely safe, but also that in that specific dorm no prior sexual assaults occurred. Therefore, while the court acknowledged a duty, the existence of a foreseeable harm did not exist which required the university to exercise reasonable care to prevent that assault.
4) In Delta Tau Delta v Johnson (1999), the same court ruled that there were sufficient prior sexual assaults to indicate a foreseeable danger and a duty to use reasonable care was ruled. Again, a totality of circumstances analysis guided the court to a seemingly appropriate result.
5) Knoll v. University of Nebraska (1999) again involved a hazing incident which began on campus and ended when a drunken Knoll was handcuffed to a radiator in a fraternity house not owned by the university. Again the totality of circumstances test was applied when considering the prevalence of hazing incidents and high-risk alcohol consumption in relation to reasonable attempts by the university to control such activity. Finding those efforts lacking, the court held for the student plaintive.
Therefore, the trend of the cases seems to becoming more favorable to student plaintives. What parents must realize is that many state courts continue to either not have the inclination or opportunity to issue a ruling that deviates from the bystander era rulings. Therefore, legal advisors in many states, including I found New York, still tell clients, whether the representing institution or the injured, that the status of current law in that state does not extend responsibility for student safety to institutions of higher education.
Despite the evident failings of an institution, the rules related to duty are quite complicated and any plaintive has a difficult time convincing a court that duty is present in a case of perceived negligence. Additionally, even if duty is found, liability does not necessarily follow. For liability to exist once duty is found, both actual negligence and probable cause must be proven. Therefore, even without the four bystander cases, holding a college or university accountable for a student injury is difficult. The cited duty era cases have at least created a climate where colleges and universities can be held accountable when appropriate.
College administrators in the duty era are prone to state that extension of liability in issues of student safety is reversion back to loco parentis. This is incorrect in that the courts are rightly applying reasonable care standards to colleges and universities similar to that applicable to commercial operations in general. This reflects the reality that colleges are not only academic centers, but also have many other roles, such a landlord with respect to student and faculty housing and that as a place open to the public where visitors are welcomed. In those roles, courts are increasingly holding the institutions to the reasonable care standard when duty exists under rules applicable to other business establishments.
If the decisions cited in the duty era cases are correct, one may ask why more state courts have not taken a similar path. The answer may well be in the nature of cases which reach the point of pretrial motions or even trial. Colleges and universities and their legal advisors recognize the universal damage that would occur to the litigation risks of colleges and university if bad cases for the institutions progress to where a court is compelled to issue a decision. Therefore, cases with bad facts for the institutions are often settled prior to that point. The cases with marginal facts are the ones which typically reach the pretrial motion stage. Furthermore, most legal advisors of injured students often are involved with no more than a few student injury cases in their career. Therefore, they often relay limited optimism for success, even in the most egregious fact situations. This is the experience that we have had during the litigation process.
Professors Bickel and Lake end their informative treatise with a suggested model for the universities of the future. They suggest a collaborative effort by administrators and students to create the safest environment possible for all. All risky and reckless student behavior will not be completely eliminated, but all would know that such behaviors are not acceptable and administrative consequences result if warranted. Therefore, safer campus environments can exist for those students who are not predisposed toward the riskiest behaviors. Any parent who desires such an environment for their child should read further about this model for change.
Acknowledgement-Most of the above discussion is drawn from the excellent legal treatise The Rights and Responsibilities of the Modern University (Carolina Academic Press, 1999), by Robert D. Bickel and Peter F. Lake. Additionally, information is drawn from Shared Responsibility: The Duty To Legal Externs, by Kathleen Connolly Butler.
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