ARTICLE: SHARED RESPONSIBILITY: THE DUTY TO LEGAL EXTERNS
NAME: Kathleen Connolly Butler *
* Associate Professor of Law, Thomas M. Cooley Law School. B.S.S. 1976, M.A.T.
1979, Northwestern University. J.D. 1989, University of Illinois College of Law.
... Another student extern was working alone at night in the office, when an
angry client, a criminal defendant, began pounding on the office door, demanding
to be let in. ... When the court characterizes the law school's conduct as
inaction that did not create the risk to the student, the student will have to
demonstrate either that she stood in a special relationship with the law school
or that the law school voluntarily assumed a duty of care to her, and she should
find this even more difficult under a Bradshaw-type analysis than the
unsuccessful undergraduate plaintiffs before her. ... By analogy to Nova
Southeastern, a court may find that the law school had a duty to exercise care
in the placement decision and a duty to warn students of known dangers in the
placement, but not a duty to provide on-going supervision and investigation of
the student's safety at the externship site. ... The externship agreement should
state that the student has chosen the site, that she understands that the law
school has not evaluated its safety, and that she assumes the risk of dangers in
the site. ... Courts should not find that, broadly, travel with a supervisor
presents a foreseeable, unreasonable danger to an extern. ...
As a torts professor, I supervise students in legal externships only
occasionally, yet of the fewer than a dozen students I have overseen, two have
reported potentially dangerous situations. One worked for a verbally abusive
solo practitioner whose medication caused violent mood swings and whose urban
office was burglarized during working hours.
Another student extern was working alone at night in the office, when an angry
client, a criminal defendant, began pounding on the office door, demanding to be
let in. Field placements provide law students with valuable real-world
experiences, but the real world can be a dangerous place. When law schools send
students off-campus for practical training, the students are vulnerable to
dangers from the neighborhoods they work in, their field supervisors, their
clients, opposing parties, and people with grudges against the legal system.
Are law schools, then, responsible for the safety of these tuition-paying
students whom they have placed in externships? The fact that legal externs are
adult graduate students in workplaces and neighborhoods beyond the physical
control of their law schools would seem to weigh against such an obligation. The
field supervisors are more aware than the law schools of the potential dangers
to externs and are better situated than the schools to guard against them. The
externs themselves are, in terms of their ability to care for themselves, not
[*53] much different from the working attorneys they will soon be and thus
have such significant personal responsibility for their own safety that it could
argue against imposing a duty on the law schools. Yet a recent Florida case
suggests that, despite issues of control, the role of supervising attorney, and
the maturity of law students, courts may rule that law schools owe their externs
a duty of care. In an analogous situation, the Florida Supreme Court held that
Nova Southeastern University owed a duty of care to a Ph.D. candidate in
psychology who was fulfilling a required clinical practicum off-campus when she
was abducted from the parking lot at her assigned agency and then raped.
For factual and legal background, Part II of this article examines the benefits
and risks of legal externships, and then Part III explains the duty concept and
its centrality to student negligence suits against colleges and universities and
traces courts' evolving views of the duty question in these cases. Part IV
examines recent decisions most analogous to the externship relationship, and
Part V predicts how, in a transitional era of college duty law, courts are
likely to rule on the duty of law schools to externs. Finally, Part VI proposes
and illustrates the application of a facilitator model of shared responsibility
to guide law schools and courts regarding duties to legal externs.
II. The Field Placement: Benefits and Risks
A. The Growing Role of Field Placements in Legal Education
Most law schools now offer some kind of field placement program that allows
students to earn academic credit by working in law firms, government agencies,
courts, legal aid offices, and other real-world settings.
Student externs work for free and pay their law schools for the experience,
which is supervised by both an on-site attorney who focuses on the work product
and job performance and a faculty member who addresses broader concerns involved
in learning to be a reflective and effective attorney.
The increased popularity of externships stems in part from external pressures.
Law students have demanded practical legal experience,
making externship programs a good marketing tool,
and since a 1992 American Bar [*54] Association (ABA) Task Force Report on
legal education, state bar associations have increasingly charged law schools
with the responsibility of teaching lawyering skills as part of the J.D.
In addition, the ABA now requires law schools to "offer to all students: . . .
adequate opportunities for instruction in professional skills"
and to "offer live-client or other real-life practice experiences."
The ABA Task Force Report, known as the MacCrate Report, found that law schools
did well at teaching legal analysis, research, and writing, but that graduates
began their first jobs otherwise unprepared to work as lawyers because they
lacked critical lawyering skills and professional values.
The MacCrate Report urged law schools to train students in ten lawyering skills:
problem solving, legal analysis and reasoning, legal research, factual
investigation, communication, counseling, negotiation, litigation and
alternative dispute resolution, organizing and management of legal work, and
recognizing and resolving ethical dilemmas.
The Report also called on law schools to instill professional values beyond
those embodied in the Rules of Professional Conduct, in particular, provision of
competent representation; striving to promote justice, fairness, and morality;
striving to improve the profession; and professional selfdevelopment.
In response to the Report, many schools performed self studies to examine
whether and how they were teaching the Report's critical lawyering skills and
values, and some made curricular changes including greater emphasis on inhouse
clinical and field placement experiences.
The shift away from paid summer clerkships or part-time jobs as the only
practical legal experience students gain during law school has also occurred
because law schools recognize that practical, legal experience, overseen by a
faculty mentor, helps law school graduates to be better lawyers from the outset
of their careers and beyond because hands-on training can meet many student
needs more ably than classroom instruction.
Certainly, the key lawyering skills identified in the MacCrate Report are best
served in a real-life context that lets externs both observe the skills in
action and practice those skills themselves.
For example, externships can provide intensive research, writing, and analytic
problem-solving in a whole-case context.
The field placement also helps students to develop personal standards of
professional conduct as they observe and reflect upon the professional conduct
of the attorneys at the externship site and confront ethical and
professional-values questions of their own.
Properly guided, the externship teaches students to reflect upon their skills,
choices, and values and helps them to become reflective lawyers responsible for
their professional growth.
The externship further enhances professional development by allowing students to
experience career possibilities and develop professional contacts while still in
Indeed, the career-shopping aspect of the externship may benefit the community
as a whole, as students who might not otherwise have chosen a public-service or
government career follow those paths as a result of their externship
Even if students do not choose public-service or government careers, these
agencies benefit from free student labor during the externship because ABA
regulations do not permit students to be paid for work they perform for academic
Another educational advantage is that the externship can supplement the law
school curriculum, not only by exposing students to legal subjects not found in
the course catalogue, but also by improving their understanding and retention of
subjects they have studied in law school and deepening students' expertise in
these areas through a more nuanced, detailed look in a wholecase context.
Allowing students to gain substantive knowledge through externships is an
advantage to the law schools as well because providing enough faculty to address
the wide range of subjects that interest students entering an ever more
specialized legal profession may not be economically possible, nor would
staffing clinics in every area of student interest.
In some instances, externships can be more valuable than course work because, as
adult learners, law students benefit from the hands-on, experiential learning
provided in the externship setting.
Adults learn better by using knowledge and practicing skills in the settings in
which the knowledge and skills are meant to be used.
Adults prefer to learn and will learn more successfully when they are active
participants involved in planning their learning, rather than passive
participants following the educational goals set by someone else.
The externship helps to prepare the whole lawyer who works and lives in the real
world outside the classroom -- a lawyer who must be attentive to and serve
client needs, wrestle with ethical issues, manage her time, reconcile the
practice of law with her personal values, wangle input from a distant boss or
appease an overbearing one, keep the secretaries in her camp, serve the
community, and build professional relationships. With the aid of a faculty
mentor and a field supervisor, the extern can make her first mistakes in a more
supportive environment, begin taking intelligent steps in the career-long
process of handling these challenges, and walk into that first job as a more
competent and confident lawyer.
B. Potential Dangers in Legal Externships
Working for lawyers and judges to earn course credit exposes law students to the
dangers that lawyers and judges face, and the profession daily places lawyers in
emotionally charged conflict situations that can fuel violence. [*57]
Violence against attorneys has been on the rise since the 1980s,
and in the current climate of hostility towards the law and legal authority,
angry litigants may attack opposing counsel, representing counsel, or the
Most attacks against attorneys occur in the courtroom during trials and in legal
offices, but violence against lawyers also occurs outside the workplace, in
parking lots, and at home.
After all, an attorney's work place is not just the office. Lawyers travel to
investigate facts, meet with clients, and take depositions. They can be victims
of violence at any place and any time.
Externs could become targets of violent anger because of their own involvement
in cases or be harmed because they are with attorneys or judges who are
Some practice areas are more dangerous for lawyers than others. Family law,
because of the intense, hostile emotions involved in custody and support issues,
is one of the most dangerous fields,
as evidenced by a 1997 survey of members of the ABA Section of Family Law.
Twelve percent of the respondents had at least once been victims of violence by
an opposing party or a client, and sixty percent had been threatened by an
opposing party and seventeen percent by their own clients.
News accounts bring these statistics to life: a lawyer stabbed in the arm by his
client's former husband after a custody case;
another divorce attorney shot and killed by his client's former husband, a
a judge shot to death after an alimony hearing.
Another high risk [*58] practice area, for lawyers and judges, is criminal
For example, the defendant in a sexual assault case tried to hire someone to
kill the victim and his attorney.
A man awaiting charges of stock fraud conspired to murder the judge who had
refused his bail.
An attorney who handled child murder and civil rights cases was murdered as he
walked to court.
In addition to high-risk cases, there are high risk clients, who can be
triggered into violence by certain volatile situations, such as losing cases
they expected to win or by falling behind in legal fees but feeling entitled to
continued legal services.
The workers' compensation claimant who killed his lawyer and held fourteen
people hostage before killing himself,
the man frustrated by a bank account and property dispute who began shooting in
a law office,
and the client who shot and killed a lawyer over a billing dispute
may have been such high-risk clients.
The dangerous client could be more dangerous to a law student not experienced in
client management than to an experienced lawyer. The younger, traditional law
student, who enters the J.D. program fresh from undergraduate school, may be a
chronological adult but lack the experience to recognize and read risky
situations. Yale Law School students representing a client who had [*59]
stolen to support her cocaine habit befriended her by "driving her to court
appearances, arranging for her to enter an inpatient drug treatment program and
driving her there, and listening to and counseling her at all hours of the day
and night, and on weekends."
The clinical instructors encouraged the students to believe that representing
the client "meant offering personal and logistical support that might help her
stay out of prison and regain custody of her children."
Yale students, representing homeless people threatened with expulsion from the
New Haven train station, helped their clients confront the police by spending
the night in the station with them.
Undoubtedly, the students learned important lessons about compassion and their
clients' real needs, yet either of the situations, with students' very personal
involvement in potentially volatile events, could have ended with physical
injury to the students.
Sadly, the field supervisors themselves could pose the threat. Sexual harassment
has been called the "dirty little secret" of the legal profession.
A 1989 survey found that more than sixty percent of women lawyers had
experienced unwelcome sexual conduct, ranging from teasing to attempted or
actual rape on the job.
The student extern is likely to be more vulnerable to sexual harassment than a
female attorney. Studies show that from thirty percent to seventy percent of
women in higher education are victims of sexual harassment,
and the particularly vulnerable groups include graduate students and female
students in male-dominated fields.
Field supervisors can prey on externs who do not want to jeopardize the career
benefits or academic credit that the externship provides.
Finally, it is possible that the student, like the plaintiff in Nova
Southeastern v. Gross,
could serve the externship in a dangerous neighborhood. The law student could
work, for example, at a legal aid office located in an area convenient for
low-income clients but more dangerous than the law firm in a neighborhood full
of law firms. The extern could also be sent to a dangerous neighborhood to
interview clients or witnesses or to view an accident scene.
Unlike the summer clerkship, the externship is overseen by a faculty member,
and the student pays tuition and receives academic credit.
The potential dangers to externs are, therefore, dangers in a curricular
activity, and that distinguishing fact raises the question of the law school's
responsibility for the safety of externs.
III. The Duty Analysis in Negligence Actions by Students Against Colleges and
The question of what duties law schools owe externs is a subset of the broader,
unsettled question of what duties colleges and universities owe their students.
Understanding the current, relevant case law requires a grasp not only of
general duty concepts but also of how judicial application of those concepts to
university law has evolved over the past few decades. To that end, Section A
explains why duty is the central issue in college students' negligence suits
against their schools but has only relatively recently become the
gate-keeping issue. Section B then reviews key duty concepts necessary to
understanding the history and present state of students' injury cases. In
Section C, early, influential no-duty cases are placed in their proper context
as judicial attempts to perpetuate fallen immunities and protective tort
doctrines. Finally, the trend away from these cases towards greater judicial
willingness to impose duties of care upon colleges and universities is
considered in Section D.
A. The Centrality of Duty
If a law student injured in the course of an externship sues her law school for
negligence, she will have to prove that the law school owed her a duty of care
and breached that duty, thereby actually and proximately causing her harm.
In addition, she will face defenses based on her own assumption of the risk or
The past few decades of university law have demonstrated that among all these
issues, the central battle of the litigation will [*61] be the question of
whether the law school owed the student extern a duty of care.
Colleges and universities fight hard on the duty issue because it is the most
useful tool for defeating liability.
Duty is an issue of law for the court;
therefore, a conclusion that the school owed the student no duty ends the
lawsuit before a jury can evaluate the reasonableness of the school's conduct.
No duty means no more negotiations, no more discovery and investigation, no
settlement, and no financial liability.
When a court determines that the school owed the student a duty of care, the
case continues with further negotiations, further investigation and preparation,
and further hearings.
Even if the school believes that it has a good argument that it acted
reasonably, that the causal link is too tenuous, that the student failed to
exercise reasonable care for her own safety or assumed the risk that befell her,
these issues will be determined by a jury, which is a more costly, more
time-consuming, and more uncertain process. Once a duty is found, the school
that believes it has a good case may settle anyway.
Therefore, duty is the key question, but the law is not fully settled on what
duties colleges and universities owe their students because duty did not become
the focus of litigation between students and their college and universities
until the 1970s. From the beginning of American history until the early 1960s,
colleges and universities had almost no liability for student claims based on
safety or discipline because institutions of higher learning were shielded by
immunities and other protective tort doctrines, such as in loco parentis,
proximate cause, contributory negligence, and assumption of the risk.
Student disputes [*62] were usually handled quietly between the student and
the school. The legal system was not involved.
Universities began to lose their legal insularity in the 1960s. First, a series
of cases recognized students as constitutional adults entitled to minimum
constitutional rights in their interactions with their schools.
These rulings ultimately toppled the doctrine of in loco parentis, which had
placed colleges in an authoritarian, controlling position over students and had
shielded them from law suits regarding student discipline and regulation.
During the mid-70s to mid-80s, several significant trends even further
diminished the protection from liability that colleges and universities had
enjoyed: the adoption of comparative fault, the relaxation of proximate
causation rules to require guarding against foreseeable third party misconduct
-even criminal misconduct, and the collapse of traditional charitable and
When the traditional shields had fallen, duty became the gate-keeping issue that
controlled whether colleges and universities were liable for injuries to
B. The Duty Concept
The careless defendant who injured the plaintiff will not be liable for the
injury if the court determines that the defendant had no legal obligation to the
plaintiff to act carefully. That legal obligation to exercise care is termed
a "duty," and duty is the first element of a negligence cause of action.
The question for the court is whether the plaintiff was entitled to protection,
and in most cases the answer is simple, so simple that it is not even contested.
As a general rule, whenever it is foreseeable that a failure to use
reasonable care would unreasonably risk harm to others or their property, the
defendant is legally obligated to use reasonable care -- he has a duty.
Drivers must drive carefully because, if they do not, their passengers, other
drivers and their passengers, or pedestrians could be hurt. The driver who is
sued for mowing down a jogger [*63] will not bother to contend that he had no
duty of care because the existence of his duty is clear.
Not all cases are so simple. The general principle requiring us all to act
carefully to avoid foreseeable injury to others is riddled with exceptions,
and when sued by their students, colleges and universities almost always
invoke the exceptions related to affirmative duties.
The school will characterize the plaintiff's theory of negligence as
nonfeasance, a claim based on the defendant's pure failure to act for the
plaintiff's benefit when the defendant was not the source of the danger.
The fact that care may have been easily provided and that harm was foreseeable
if care was not provided is not a sufficient basis for imposing a duty in a
A court will not impose an affirmative duty to act unless the plaintiff
proves that the defendant stood in a special relationship with her or
voluntarily assumed a duty to act with care.
Therefore, the injured student will likely face a motion for dismissal or
summary judgment based on rules of "no duty to protect," "no duty to rescue,"
or "no duty to control the conduct of third parties," all subsets of the
affirmative duty rule.
According to the Restatement (Second) of Torts, special relationships that
impose an affirmative duty of protection, rescue, or control include the
relationships between a common carrier and its passengers, an innkeeper and its
guests, a possessor of land held open to the public and the entering public, and
a custodian and ward.
A Caveat in the Restatement leaves open the possibility [*64] of other
relationships that might impose a similar duty,
and case law in some states has expanded the list to include the relationship
between primary and secondary schools and their students,
but courts have declined to find the relationship between college and student to
be per se special.
Courts will expand the list of accepted special relationships to a limited group
of relations, in which custom, public sentiment and views of social policy have
led the courts to find a duty of affirmative action. In such relationships
the plaintiff is typically in some respect particularly vulnerable and dependent
upon the defendant who, correspondingly, holds considerable power over the
plaintiff's welfare. In addition, such relations have often involved some
existing or potential economic advantage to the defendant. Fairness in such
cases thus may require the defendant to use his power to help the plaintiff
based upon the plaintiff's expectation of protection, which itself may be based
upon the defendant's expectation of financial gain.
A plaintiff may also seek to overcome the "no duty to act" argument by proving
that the defendant voluntarily assumed a duty to her, either by beginning
performance of an act or by making a promise to act that demonstrated assumption
of the duty.
The Restatement (Second) of Torts recognizes an affirmative duty when the
defendant "undertakes, gratuitously or for consideration, to render services to
another which he should recognize as necessary for the protection of the other's
person or things . . . if . . . his failure to exercise such care increases the
risk of such harm, or . . . the harm is suffered because of [*65] the other's
reliance upon the undertaking."
So, in addition to proving that the defendant began performance or promised to
act, the plaintiff must show either that the defendant's negligence increased
the risk of the personal injury or property damage suffered or that such harm
was suffered in reliance upon defendant's performance.
The Restatement leaves open whether a defendant's mere promise, without starting
any performance, is a sufficient undertaking to impose an affirmative duty,
but the comments note that in cases where the plaintiff has been injured by
relying upon the promise, courts tend to seek ways to characterize the
defendant's conduct as having entered into performance.
Professor Dobbs observes that courts "are entirely willing to impose liability
for negligent nonperformance of a safety promise."
The defendant who has voluntarily assumed a duty may be held liable for
negligent performance of the undertaking, failure to exercise reasonable care to
complete the undertaking, or failure to exercise reasonable care to protect the
other after discontinuing the undertaking.
The defendant's liability will be limited to the scope of the risk that the
defendant's negligence created and to the harms that the undertaking was meant
or reasonably expected to prevent.
It seems, then, that whether the injured student can establish that the
college owed her a duty will turn on whether the court characterizes the case as
one of misfeasance or nonfeasance, and if it finds nonfeasance, on whether it
characterizes the relationship as special or the school's conduct or promises as
assuming a duty that it did not otherwise have. These inquiries, however,
may not always resolve the question. In negligence law, the court considers
public policy under the duty issue, and in a particular case a court may
find that social policy, the interests of justice, or the parties' own competing
interests support or preclude a duty.
Many courts, deciding the duty issue, will apply a policy factor analysis that
considers some or all of the following: [*66]
1) foreseeability of harm to the plaintiff;
2) nature of the risk;
3) extent to which the transaction was intended to affect the plaintiff;
4) degree of certainty that the plaintiff suffered injury;
5) closeness of the connection between the defendant's conduct and the
6) moral blameworthiness and responsibility of the defendant;
7) burden on the defendant and larger community if a duty is imposed;
8) social policy of preventing future harm (whether imposing a duty will tend to
9) availability, prevalence, and cost of insurance for the risk involved; and/or
10) administrative factors, such as ease of administering a duty rule.
C. Shielding Colleges and Universities with No-Duty Rules
The loss of legal insularity that instated duty as the key issue in college
students' negligence suits against their schools
did not create a new age of liability. Courts still thought of colleges and
universities as special places that should be shielded from liability, and they
used no-duty rules to accomplish a de facto immunity.
Beginning in the mid-'70s and continuing into the 1980s, courts generally
characterized colleges and universities as bystanders to student activity,
helpless to control the drunken, stoned, sex-crazed, hippie, but
constitutionally adult, hordes who lived a spoiled, luxurious lifestyle on
As bystanders, the schools had not acted; they had created no risk. [*67]
Therefore, courts treated injured students' theories of university negligence as
premised on nonfeasance and requiring a special relationship before a duty could
In looking for this special relationship, the courts considered only the
traditional categories, despite the Restatement's openness to expanding these
categories. Of the traditional categories, the only one possibly applicable was
a custodial relationship.
On the custodial relationship issue, students' newly won constitutional rights
were used against them.
Courts ruled that, as constitutional adults, students could hardly be deemed in
the custodial care of their schools. As adults, students were responsible for
their own safety, and colleges and universities could not be expected to help
them stay safe.
Courts characterized even university-sponsored activities as nonfeasance
situations where no duty was owed absent a special relationship involving
custodial control, and, of course, now that in loco parentis had fallen, the
schools had no custodial control, no special relationship, no duty, no
Even when students contended that a duty had been assumed, the courts rejected
the argument on the ground that no custodial obligation had been assumed and did
not consider that lesser obligations may have been undertaken and breached.
With a lack of judicial imagination, nostalgic courts saw the lost right to
exercise rigid, authoritarian control as the only way to keep campuses safe.
1. Bradshaw v. Rawlings
Bradshaw v. Rawlings
is a highly influential 1979 opinion by the Third Circuit. Many cases have
seized its argument that the inability of the modern American college to
exercise custodial control over its students precludes finding a special
relationship between student and university. The case is also frequently relied
upon to reject an argument that university rules devised to [*68] promote
student safety created an assumed duty to enforce those rules.
A student at Delaware Valley College, Bradshaw had attended an annual sophomore
class picnic, planned with the aid of a faculty supervisor, who co-signed the
check used to purchase approximately seven half-kegs of beer by the underage
Most of the sophomore class was under the state drinking age, and university
rules prohibited underage drinking, but the college duplicating center
reproduced the beer-mug decorated flyers that the party organizers posted
throughout campus to advertise the picnic.
The college provided no transportation, leaving the underage drinkers to find
their own ways to and from the off-campus grove where the party was held.
The faculty sponsor did not attend the picnic or send anyone in his place who
might have noticed that Rawlings, the student who was Bradshaw's ride back to
campus, had become intoxicated.
On the drive home, Rawlings lost control of his car, and the resulting accident
rendered Bradshaw quadriplegic.
The district court, which found that the college owed Bradshaw a duty of care
and submitted the case to the jury, saw the college as an actor with knowledge
of the dangers it had created by helping to plan and promote a party at which
underage students would drink and then have to rely on private transportation to
return to campus.
To the district court, the case involved misfeasance, so that the duty question
turned on whether an unreasonable risk of harm was foreseeable if care was not
Under a duty, the college was required only to act reasonably, not to insure
After the jury found the college liable to Bradshaw, and the district court
denied a motion for judgment notwithstanding the verdict, the college appealed,
contending that Bradshaw had failed to establish a duty of care.
Writing for the Third Circuit, Judge Aldisert saw the case quite differently
from the district court and overturned its opinion based on three intertwining
themes: (1) that the relationship of the modern university with its students had
changed radically, leaving the schools unable to exercise custodial control
[*69] over students and keep them safe;
(2) that imposing a duty would strap colleges with an impossible burden to
fulfill, making them insurers of student safety;
and (3) that the college had not created a risk, the students had, so that the
case was premised on nonfeasance and required a special custodial relationship
between student and university if a duty was to be imposed.
Regarding the first theme, Judge Aldisert explained that the relationship
between college and student had changed dramatically in recent years. When
institutions of higher learning were regarded as standing in loco parentis to
their students, who were considered minors entrusted to their care, the schools
could keep students safe by imposing and enforcing strict regulations on student
Through the "campus revolutions of the late sixties and early seventies,"
college students had "peaceably and otherwise" obtained greater rights,
privileges, and freedoms and ended the in loco parentis doctrine.
As constitutional adults, freed from authoritarian university control, students
had won the right to regulate their own lives: they had greater privacy rights;
more liberal, even unlimited, visiting hours; and control over "the broad arena
of general morals."
Strict regulation of student conduct was now constitutionally forbidden, and the
students had wanted it that way. Unable to regulate student conduct, the college
was unable to control that conduct and therefore unable to keep students safe.
This vision leads to the second theme -- the equation of duty with liability. To
the Third Circuit, a university duty to the students meant liability. The court
declared that its "beginning point" in analyzing the case was "a recognition
that the modern American college is not an insurer of the safety of its
As the modern American college was now unable to sanction students for
misbehavior in their private lives, the court believed that the colleges were
now helpless to keep students safe. A duty requiring them to do so would make
them guarantors of student safety, liable whenever drunken students injured
themselves or others.
The third theme, that this was a case of nonfeasance, was never explicitly
stated, but the court's search for duty in the law of special relationships and
the rhetoric employed throughout the opinion make clear that the court did not
see the university as the risk creator. As students, not the school, were the
source of danger, the school had to be in a special relationship with the
student to owe him a duty. That duty could be found if the court expanded the
traditional categories of special relationships to include that of college and
student, just as the categories had been expanded to include the relationships
between educational institutions and primary and secondary students.
The court found, however, that the momentous change in student rights and
privileges precluded such an expansion. Although broadening the categories to
include relationships between schools and elementary or secondary students was
logical because these relationships involved minor children and traditional,
the same logic did not apply to the relationship between college and student.
Judge Aldisert equated constitutional adult status with actual maturity and the
ability to make wise choices and so wrote that college students stood in a
different relationship with their schools because they had "reached the age of
majority and were capable of protecting their own self-interests."
The relationship had once been special, before college students gained minimal
constitutional rights, but the source of the special relationship had been the
fallen doctrine of in loco parentis.
By seeking greater freedoms, students had lost the custodial relationship that
had been the source of a duty of care.
Although the Third Circuit declined to find the college and student relationship
per se special, it considered whether the relationship between Bradshaw and
Delaware Valley College had become custodial and therefore special.
(The decision to analyze the problem in this manner seems to blur the concepts
of special relationship and voluntary assumption of a duty.) Bradshaw had argued
that a duty arose from college rules prohibiting alcohol consumption by any
students, regardless of age.
Because most students at the college would be under the state drinking age, the
Third Circuit saw the prohibition as merely [*71] requiring students to obey
state law, and such a requirement could hardly be seen as a voluntary assumption
of custodial responsibility.
Therefore, the Third Circuit predicted "that the Pennsylvania courts would not
hold that by promulgating this regulation the college had voluntarily taken
custody of Bradshaw so as to deprive him of his normal power of self-protection
or to subject him to association with persons likely to cause him harm."
Without a custodial relationship, the case was not submissible to the jury.
The court did not consider the possibility that a lesser responsibility than
custodial care, the responsibility to exercise reasonable care to enforce the
college safety rules, had been assumed and breached. It was custodial care or
Bradshaw had also argued that the college owed him a duty to control the conduct
of his drunken friend or to protect him in transportation to and from school
activities since the college knew that students would drink beer at the party in
violation of its regulations and state law, thereby creating a foreseeable risk
to third parties.
Ridiculing Bradshaw's argument as centered on the idea "that beer-drinking by
underage college students, in itself, creates the special relationship,"
Judge Aldisert refused to recognize the college as an actor that had created any
risks in this scenario. The court elaborated on "the fact that beer drinking by
college students is a common experience"
to two ends: (1) that it is so common that it cannot really be regarded as the
kind of harm-producing event that triggers a duty and (2) that it is so common
that to find a duty would place "an impossible burden on the college."
Bradshaw's arguments that a duty here would not impose an impossible burden were
dismissed, however, as blurring the duty and breach questions.
The three themes of Bradshaw rest on shaky foundations. First, granting students
constitutional adult status is hardly the same as bestowing on them the maturity
and judgment to exercise reasonable care for themselves, especially as many of
them have just graduated from high school and are on their own for the first
time in their lives. Second, the case easily could have been viewed as
misfeasance, so that the plaintiff would not have had to play with the stacked
deck of a special relationship inquiry. As the district court saw it, this case
involved the college's active sponsorship of a party by providing funds for
alcohol [*72] and advertising that beer would be available.
The school was not a mere bystander; it actively made the drinking possible and
then did nothing to prevent the inevitable risk. This did not have to be a
special relationship case at all.
Finally, imposition of a duty is not the same as imposition of liability, which
the district court also recognized. A duty of reasonable care is not a duty of
insurance, a duty to pay for any student injury, but a duty to act towards
students with reasonable care and to compensate only those students injured
because the college acted unreasonably. The "duty to protect" and "duty to
control" are not duties to achieve protection and control but duties to act
reasonably towards those goals.
Reasonable care, by its nature, is never impossible because it calls only for
reasonable measures. Although stopping certain, individual students who want to
drink and drive from doing so may indeed be impossible, taking reasonable steps
to reduce the chances that other students will engage in this dangerous behavior
is rather easy. The faculty sponsor could have inquired how the check was being
spent and refused funds for alcohol. The faculty sponsor could have reminded the
underage class president that alcohol rules applied off-campus and that student
violators would be suspended. The faculty sponsor could have attended the picnic
or sent another responsible adult employee in his place. The college could have
refused to help advertise the picnic as a beer party. The college could have
sent a van to shuttle students who drank too much. What the court really seems
to find impossible is not living up to a reasonable care standard but changing
the behavior of immature, constitutionally adult students who want to drink and
behave recklessly, but whether one or all of these simple precautions would have
prevented Bradshaw's friend from driving drunk or Bradshaw from riding along
with him is a causation question, not a question of the propriety of imposing a
2. The Bradshaw Line of Cases
From Bradshaw v. Rawlings came a line of cases characterizing the conduct of
colleges and universities as nonfeasance and holding that colleges no longer in
loco parentis to students were not in special relationships with them and did
not assume duties to enforce their own safety provisions. The student plaintiff
in Baldwin v. Zoradi
was also a passenger in a car driven by an intoxicated student. In this case,
the student driver had become drunk in the college dormitory and then raced
other drunk students.
The plaintiff contended that her university was negligent in its knowing failure
to enforce its own alcohol prohibitions and in particular in the blind eye that
dorm assistants turned to underage student drunkenness.
Explicitly finding this to be a case of nonfeasance, a California appellate
court considered whether the relationship between a college student and her
university was a special relationship.
The court acknowledged that elementary and high schools owed their students a
duty of rule enforcement and supervision because school children have not
attained full maturity and could not exercise the "'discretion, judgment, and
concern for the safety of themselves and others'" that fully mature people can
but declined, because college students are adults, to find a similar obligation
to college students based solely on the educational relationship.
Yet later in the opinion, considering the public policy implications of imposing
a duty, the court declined to find a duty in part because students had not fully
matured and needed freedom to make mistakes and learn from them: "Only by giving
them responsibilities can students grow into responsible adulthood."
The court also considered whether the student's relationship to the university
was one of such dependence that a special custodial duty was owed.
The plaintiff had argued that the dormitory contract, which gave the university
the power to inspect the dorm and terminate the room license for reasons of
health, safety, or general welfare and prohibited alcohol use, created a special
The court rejected this argument because it was not apparent [*74] that
failure to enforce alcohol provisions would create an imminent danger to
The California appellate court was willing to look beyond the special
relationship question and engage in a policy factor analysis.
This still did not produce, however, a finding of duty.
The court side-stepped the foreseeability question as easily outweighed by other
and found that the facts did not present a sufficiently close connection between
the school's alleged negligence and the speed contest. More importantly, the
court found that the university was not morally blameworthy in its nonfeasance.
Guided by Bradshaw, the court explained that the university had lost its
authoritarian control over students and could not control student morals.
Feeling the sting of California student activism, the court wrote, "Since the
turbulent '60's, California colleges and universities have been in the forefront
of extension of student rights with a concomitant withering of faculty and
administrative omnipotence. Drug use has proliferated."
To the court, the substanceabusing students were the parties with low morals,
and "college administrators no longer control the general area of general
In addition, and somewhat contradictorily, the failure to enforce prohibitions
against alcohol use was not morally blameworthy because "the use of alcohol . .
. is not so unusual or heinous by contemporary standards as to require special
efforts . . . to stamp it out."
Concurring with Bradshaw, the court found that the decision to reserve the right
to enforce state drinking laws did not impose a mandatory duty to do so.
Although the legislature had repeatedly demonstrated a policy against drinking
by minors, the policy factor of preventing future harm nonetheless weighed
against the student because legislative prohibitions focused on active "giving"
or "furnishing" of alcohol to minors and did not prohibit standing by as minors
Although the university did not stop student drinking, it also did not induce or
encourage it. Therefore, policy concerns about underage drinking were not
implicated. In addition, the court found that public policy [*75] favored
leaving underage students to their own devices when it came to drinking alcohol
because "only by giving them responsibilities can students grow into responsible
Overstating the demands of a duty of reasonable care, the court found that the
burden factor further weighed against finding a duty because "it would be
difficult so to police a modern university campus as to eradicate alcoholic
Although considerations of the certainty of plaintiff's injury and the
availability of insurance weighed in the student's favor, on balance, policy
considerations supported a no-duty finding.
Building on Bradshaw and Baldwin, the Utah Supreme Court found in Beach v.
University of Utah,
that the university owed no duty of care to an underage student injured on a
required biology field trip.
After the curricular part of the day had ended, the plaintiff, along with her
professor and other students, attended a lamb roast. There she drank four or
five glasses of alcohol, and she continued to drink in the van driven back to
the campsite by her professor. Her professor dropped her off, and on her way to
her tent in the dark, the student became disoriented and fell off a cliff.
Although the case could easily have been characterized as the misfeasance of a
college professor enabling his underage students to drink alcohol in violation
of school rules and state law, the Utah Supreme Court saw it as an affirmative
duty case, in which Beach, the injured student, was asking the university to
"protect her from her own intoxication and disorientation on the night in
This required a special relationship, the essence of which was dependence.
Among other unsuccessful arguments, Beach contended that university regulations
prohibiting alcohol consumption by underage students created a special
but the court, focused on whether the regulations made the relationship
custodial, refused to find a duty because college students, who could vote and
be tried as adults, were not juveniles.
"We do not believe that Beach should be viewed [*76] as fragile and in need of
protection simply because she had the luxury of attending an institution of
Quoting Bradshaw, the court explained that it was particularly important -- even
constitutionally required -- to treat college students as adults, responsible
for their own safety. Adding to the Bradshaw and Baldwin rhetoric, the court
colleges and universities are educational institutions, not custodial. Their
purpose is to educate in a manner which will assist the graduate to perform well
in the civic, community, family, and professional positions he or she may
undertake in the future. It would be unrealistic to impose upon an institution
of higher education the additional role of custodian over its adult students and
to charge it with responsibility . . . for assuring their safety and the safety
of others. Fulfilling this charge would require the institution to babysit each
student, a task beyond the resources of any school. But more importantly, such
measures would be inconsistent with the nature of the relationship between the
student and the institution, for it would produce a repressive and inhospitable
environment, largely inconsistent with the objectives of a modern college
A "realistic assessment" of the relationship between parties precluded the court
from finding a special relationship.
The duty was incapable of performance and at odds with the parties'
Cherie Rabel, the plaintiff in Rabel v. Illinois Wesleyan University,
was an Illinois Wesleyan University (IWU) student living on campus in a
Jack Wilk, also an IWU student, was a member of the Fiji fraternity, which was
holding a lengthy, boisterous, drunken, day-time party, when Wilk summoned Rabel
to the lobby of her dorm, grabbed her forcibly, threw her over his shoulder, and
ran outside to run a gauntlet of fraternity members who were to hit him with
bones as he passed.
Instead, Wilk fell, dropping Rabel and causing her serious, permanent head
The trial court dismissed [*77] Rabel's law suit against IWU on the pleadings
on the ground that IWU did not owe Rabel a duty of care.
On appeal, Rabel pointed out that IWU had marketed itself as a religious school
with a tradition of supervising and controlling student activities and enforcing
its rules prohibiting alcohol on campus.
In reliance on the promise of a safe learning environment, students enrolled and
paid the expensive IWU tuition.
Rabel contended that the representations that IWU would provide safety, the
university rules that attempted to provide safety, and the premium tuition
charged for providing safety, imposed a duty on the university to do what it
said it would do.
That duty would be premised either on creating a special relationship or
voluntarily assuming a duty.
The appellate court found that Illinois Wesleyan had not assumed a duty because
Rabel had not identified any other court that had found a college or university
had assumed a duty to provide a safe environment by promulgating rules or
handbooks suggesting that it would.
Illinois Wesleyan, on the other hand, could point to Bradshaw and Baldwin for
the principle that university prohibitions of student drinking did not impose a
duty on the school to put any teeth into those prohibitions.
The appellate court, therefore, was unimpressed by Rabel's argument, despite the
fact that it could be distinguished from the arguments rejected in Bradshaw and
Baldwin. Rabel did not merely argue that because Illinois Wesleyan had the rules
it must enforce them. She argued that she had been enticed to the university by
those regulations and the promise of safety embodied in them and that Illinois
Wesleyan took money that she paid based on the regulations, and that was why
Illinois Wesleyan was obligated to enforce its own rules.
In addition, the appellate court found that the IWU handbook, rules, and
policies did not create a custodial relationship between the university and its
In reaching this conclusion, the court was impressed by the rhetoric from
Bradshaw and Beach that suggested the impossibility of fulfilling a duty if
The university's responsibility to its students, as an institution of higher
education, is to properly educate them. It would be [*78] unrealistic to
impose upon a university the additional role of custodian over its adult
students and to charge it with the responsibility of assuring their safety and
the safety of others. Imposing such a duty of protection would place the
university in the position of an insurer of the safety of its students.
3. Finding No Duty Without Relying on the Bradshaw Line
Other courts of this era rejected injured students' duty arguments without
relying on the Bradshaw line, as is seen, for example, in Eiseman v. State.
SUNY Buffalo admitted a conditionally released prisoner known to have a history
of violence, drug abuse, and mental illness.
He murdered a male student and raped and murdered a female student, whose estate
sued the State, alleging that the university was negligent in admitting the
ex-felon and/or failing to restrict his activities in light of the risk that he
The New York Court of Appeals considered whether the admission of an ex-felon
through a special program imposed a duty despite the fact "that colleges today
in general have no duty to shield their students from the dangerous activity of
The court found "no justification" for imposing such a duty.
The court found no compelling public policy reasons to support a duty and
instead found compelling reasons not to. Any duty of care for other SUNY Buffalo
students would affect the privacy rights of potentially dangerous students and
impede the rehabilitation and education of a former convict who had served his
time and been legally released into the community.
4. Continuing Impact of Post-Immunity Era
Cases of this era continue to be cited uncritically and with approval today
by some courts.
The attitude of this "bystander era"
made colleges and [*79] universities more dangerous because administrations
believed that if they did act to protect students, they would be found to have
assumed duties that they did not otherwise have.
Yet some courts in this era recognized that student rights were not won at the
price of student safety and did find a special relationship between the
university and the injured student.
These cases opened the way to a more thoughtful duty analysis.
D. Courts Become More Open to Finding a Duty
1. Bucking the Bradshaw Trend: Mullins v. Pine Manor College
Not all courts ruling on the duties that colleges owed students in the
post-immunity days saw colleges as mere bystanders to student injury, obligated
to act only if the student could demonstrate a special, custodial relationship.
The counterpoint to Bradshaw is Mullins v. Pine Manor College.
In that case, the Massachusetts Supreme Court stated that the general rule that
there is no duty to protect others from the criminal or wrongful acts of third
parties had "little application" to the case of Lisa Mullins, a freshman
abducted from her dormitory at Pine Manor College and raped.
The court explained that the duty of Pine Manor College in that case had two
possible sources in well-established legal principles. First, duty can derive
from "existing social values and customs."
Colleges of ordinary prudence do take steps to protect resident students from
In fact, plaintiff's expert visited eighteen area colleges, all of which took
steps to provide adequate campus security.
Therefore, the college community recognized an obligation to protect students
from criminal acts, and that recognition indicated "that the imposition of a
duty of care is firmly embedded in a community consensus."
The court pointed out that the concentration of young people, especially young
women, made campuses ripe for criminal predators, and the college is better
situated than students to provide the necessary security against criminal harm.
The Mullins analysis recognized the difference between being a constitutional
adult, entitled to vote and have privacy rights, and being a true adult, able to
act and choose with maturity, as well as the difference between a lack of
authority to police student morals and a lack of responsibility for student
Some students may not have been exposed previously to living in a residence hall
or in a metropolitan area and may not be fully conscious of the dangers that are
present. Thus, the college must take the responsibility on itself if anything is
to be done at all.
Of course, changes in college life, reflected in the general decline of the
theory that a college stands in loco parentis to its students, arguably cut
against this view. The fact that a college need not police the morals of its
resident students, however, does not entitle it to abandon any effort to
ensure their physical safety. Parents, students, and the general community
still have a reasonable expectation, fostered in part by colleges themselves,
that reasonable care will be exercised to protect resident students from
The court also found that the duty of care could be established by showing
that the college had voluntarily assumed it.
Pine Manor College had undertaken a duty to protect students from the criminal
acts of third parties and it had done so not gratuitously but had charged
students tuition and a dormitory fee.
"Adequate security is an indispensable part of the bundle of services which
colleges . . . afford their students."
For the voluntary undertaking approach to succeed, the plaintiff must show
either that the undertaking increased the risk to her or that she relied on the
The court found it "quite clear that students and their parents rely on colleges
to exercise care to safeguard the well-being of students."
Prospective students care about campus security, and those visiting Pine Manor
would have noticed the fence, the guards, and other visible security steps.
Indeed, the requirement that freshmen live in the dorm was a representation that
the college could provide adequately [*81] for their safety.
Mullins had visited a number of colleges, and the court determined that students
and parents rely on colleges to protect students from foreseeable harm.
These two bases were sufficient to establish a duty of colleges to use
reasonable care to prevent students from being injured by accidental, negligent,
and intentional acts of third parties.
2. Viewing the Relationship as More than Educational
By the mid-'80s a shift had begun; courts more and more frequently found that
the university did owe the student a duty of care.
Although courts still required the student to prove a special relationship and
still continued to reject the relationship between a university and a student as
special per se, courts began to recognize that the school often stood in
relationships to its students other than the educational one and that these
relationships were special.
When the university ran a dormitory, it was a landlord, and the students were
its tenants, who were owed a duty of care in the area of residential/dormitory
When the university took fees from students, it was a business, and the students
were its customers, who were owed reasonable care in those services.
Duties were found for premises maintenance. The colleges and universities as
businesses had to provide their customers, the students, "safe walkways, proper
lighting, and other aspects of reasonably safe premises."
When [*82] students worked on campus, the school was an employer.
A duty of care was even found off-campus, when a student was injured on a
school-related canoe trip.
Moreover, when schools acted to protect students and created reliance, they
had a duty to exercise reasonable care in the endeavor that they started.
Within the educational relationship, duties were found with regard to curricular
and cocurricular safety, in the conduct of classes and labs.
The obligation to provide curricular safety is not tied to exceptions to no
affirmative duty rules and does not require a special relationship because it is
based on the duty to use reasonable care in actions and activities.
In a "radical shift" from the insular university, courts found duties in the
full range of extra-curricular activities in which universities exercised more
supervision, direction, structure, and control.
This did not mean that schools would be liable, but it did mean that courts
would at least consider that they were subject to liability where previously
they would not have been.
The willingness of courts to use a business analogy to find that the
post-secondary institution owed a duty and to find that a duty was voluntarily
assumed is the attitude change most important to the question of whether law
schools owe externs a duty of care.
3. The Furek Turning Point -- The University as a Business
The decision in Furek v. University of Delaware
has been dubbed the end of the bystander era
because it repudiates the logic of the line of cases that "seem to rely on the
policy analysis set out in Bradshaw without considering the factual validity of
its premises or the accuracy and consistency of its logic."
Furek was a fraternity pledge who was permanently scarred when lye-based
oven cleaner was poured on him as part of hazing. For years, the university
[*83] was aware that students were being injured in fraternity hazing, and for
years the university issued statements prohibiting hazing.
These pronouncements were ineffectual, and hazing continued openly on campus, as
the university took no direct action to deal with the known hazing danger.
No evidence was presented that campus security had been instructed to
investigate or take action regarding hazing. In fact, the evidence showed
that when officers witnessed hazing they permitted it to continue.
Furek won his negligence case with the jury, but the trial court granted
the university a judgment notwithstanding the verdict because Furek had
presented insufficient evidence to establish a special relationship supporting a
duty or the voluntary assumption of a duty to enforce the anti-hazing rules.
Upon Furek's appeal, the university asked the court to accept the
Bradshaw logic that the end of in loco parentis meant the end of any special
relationship between university and student that would require the university to
protect the student.
Recognizing that the scope of a duty of care often turns on the relationship
between the parties, the court chose to examine the relationship between student
and university for itself, rather than relying on the Third Circuit's
description. In its more accurate assessment, the court wrote:
The university-student relationship is certainly unique. While its primary
function is to foster intellectual development through an academic curriculum,
the institution is involved in all aspects of student life. Through its
providing of food, housing, security, and a range of extracurricular activities,
the modern university provides a setting in which every aspect of student life
is, to some degree, university guided. This attempt at control, however, is
directed toward a group whose members are adults in the contemplation of law and
thus free agents in many aspects of their lives and life styles. Despite the
recognition of adulthood, universities continue to make an effort to regulate
student life and the courts have utilized diverse theories in attempting to fix
the extent of the university's residual duty.
The Furek court accepted the constitutional adulthood of college students
as relevant to the legal obligations arising from the relationship but did not
[*84] consider that adult status dispositive of the duty issue. The court
rejected the idea that "student and the university operate at arms-length, with
the student responsible for exercising judgment for his or her own protection
when dealing with other students or student groups."
Given the nature of the relationship, the duty owed was limited, but a duty was
A key point here is that the Delaware Supreme Court did not see duty in all
or nothing terms as many previous courts had. The duty did not have to be
custodial care or no care -- it could be limited as was appropriate in the
The court rejected the Bradshaw line of cases as utterly unsupported. Those
cases offered no empirical evidence that reduced supervision fostered increased
student maturity, and other than the assertions of the Bradshaw opinion itself,
the line relied upon no legal or other authority for the contention that
supervising potentially dangerous student activities would harm the college
environment or be inconsistent with the goals of a college education. The court
found it equally likely that supervision, particularly where it promoted student
health and safety, was consistent with the parties' relationship.
Student activists in the 1960s had not protested and litigated for greater
rights to end university supervision of dangerous activities -- to ensure the
right to have trampolines or haze fraternity pledges -- but to end political and
The court could not accept that this successful activism meant students were
no longer owed safety. In addition, the court pointed out a logical flaw in
the Beach and Bradshaw opinions. Both rejected a duty because the students were
adults, yet these were alcohol-related cases, and neither plaintiff was legally
adult with regard to alcohol.
The court observed that despite the fall of in loco parentis, some courts had
found colleges and universities to owe a duty to their students
as the Massachusetts Supreme Court did in Mullins.
Even though the relationship could not be characterized as custodial and was not
special per se, "where there is direct university involvement in, and knowledge
of, certain dangerous practices of its students, the university cannot abandon
its residual duty of control."
The source of the duty to Furek could be found in
two places. First, the university could be found
to have voluntarily assumed a duty of protection as set [*85] forth in
Restatement (Second) of Torts $ S 323.
The university had an antihazing policy and made repeated communications to
students and fraternities regarding the policy. "The University's policy against
hazing, like its overall commitment to provide security on campus, thus
constituted an assumed duty which became 'an
indispensable part of the bundle of services which colleges . . . afford their
In addition, a duty could be premised on Furek's
business invitee status on university property.
As a landowner with knowledge of an unreasonably dangerous use of its property,
the university had a duty to safeguard Furek against the hazard,
even though the hazard was the conduct of the third parties who hazed him.
The duty was not absolute but extended to foreseeable
acts of third parties subject to university control.
Evidence of foreseeability could be found in the defendant's past experience or
the place or character of the business.
Also the property owner's attempts to provide security
or regulate a hazardous activity can demonstrate the foreseeability of the risk.
That was the case here. The university's own weak attempts to curb the hazards
plus known student injuries from hazing proved that such injuries were
As to the issue of control, the fraternity was on campus and subject to the
university security department.
The university ban and its attempts to bring
disciplinary action against the fraternity after Furek's injury showed
the university's own belief that it had the authority to enforce its anti-hazing
The court stated that the necessary control to impose a duty did not have to be
absolute. "If control includes authority to direct, restrict and regulate, the
University with its significant involvement in the regulation of fraternity
life, particularly in the area of hazing, may be deemed to have exercised
supervision over the use of its property to permit 'at least the inference of
In summary, the court found that even without the in loco parentis relationship,
"the relationship is sufficiently close and direct to impose a duty under
[*86] Restatement $ S 314A."
Although the university was "not an insurer of the safety of its students nor a
policeman of student morality, nonetheless it had a duty to regulate and
supervise foreseeable dangerous activities occurring on its property."
The duty was not broad but limited to situations where the university exercised
control and was owed to students on the property for permitted purposes.
4. The University Assumes a Duty
Rejena Coghlan, the plaintiff in Coghlan v. Beta Theta Pi Fraternity, n260was an
eighteen-year-old freshman at the University of Idaho. As a sorority pledge at
Alpha Phi Sorority, she was invited durig
Rush Week to two fraternity drinking parties, where she was served beer,
whiskey, and mixed hard alcohol.
Coghlan did not have identification, nor was she asked for it at either party.
One party was attended by two Greek advisors employed by the university, and one
spoke to Coghlan.
As a result of drinking at the fraternity parties, Coghlan became intoxicated
and distraught. A sorority sister escorted her home and put her in bed. Later
that night Coghlan fell from a fire escape platform to the ground thirty feet
The trial court dismissed Coghlan's negligence claim against the University,
holding that it owed her no duty of care.
On appeal, the Idaho Supreme Court concurred that no special relationship
existed between Coghlan and the university that would overcome the general rule
that imposes "no affirmative duty to act or assist or protect another."
The court "declined to hold that Idaho universities have the kind of special
relationship creating a duty to aid or protect adult students from the risks
associated with the students' own voluntary intoxication."
The court cited with approval cases that have declined to find a special
relationship between students and colleges because college students today are
regarded as adults, and college and universities no longer assume the [*87]
authoritarian, custodial role they played under the in loco parentis doctrine.
The court agreed with the Third Circuit opinion in Bradshaw that "'the modern
American college is not an insurer of the safety of its students.'"
Nonetheless, the court overruled the trial court's dismissal of the case.
Instead of finding a special relationship, the court determined
that the pleadings sufficiently stated a claim for
relief because the facts provided an inference that the university had assumed a
The court explained that a duty can be created where one previously did not
exist. "'If one voluntarily undertakes to perform an
act, having no prior duty to do so, the duty arises to perform the act in a
In this case, two university employees attended the BTP party to supervise it.
They knew or should have known that the fraternity was serving alcohol to
underage students, and they knew or should have known that Coghlan was drunk.
Without concluding at this stage that a duty had been
assumed as a matter of law, the court held that it was error to dismiss the case
at that point in the proceedings because the allegations supported an inference
that the university had "assumed a duty to exercise reasonable care to safeguard
the underage plaintiff from the criminal acts of third persons, i.e., furnishing
alcohol to underage students, of which the university employees had knowledge."
IV. Duty Analysis in Cases Most Analogous to Externships
A. Finding No Duty
The Supreme Judicial Court of Massachusetts rejected a duty in an externship
context in Judson v. Essex Agricultural & Technical Institute.
As part of her curriculum at Essex Agricultural and Technical Institute, Carol
Ann Judson was required to participate in employment related to her course work.
[*88] While fulfilling the requirement by working at Bradvue Farm, Judson fell
from a barn loft and was injured.
She sued her vocational school for negligence in failing to provide a reasonably
safe workplace and failing to ensure that the farm had workers' compensation
insurance as it had represented to the school.
The trial court granted summary judgment to the vocational school.
The state supreme court concurred and held that the school owed no duty to the
The court declined to consider whether the vocational school owed Judson a duty
based on a special relationship, leaving Judson to rely on her alternative
theory that the placement agreement imposed a duty of care.
That agreement provided in part:
It is understood by the employer that the student's project instructor will
visit or call the student on the job for the purpose of consultation, to insure
that both the employer and the student get the most out of this situation. The
instructor will show discretion in the time and the circumstances of these
The employer is aware of, and agrees to abide by, labor and wage laws as they
may apply to this employment. This agreement may be terminated by mutual
agreement at any time by either the cooperating employer or the school.
The court rejected Judson's analogy to Mullins
because no social values or customs demonstrated that vocational schools have
recognized an obligation to protect students in their school-related employment
with third parties that would make students or their parents expect the school
would exercise reasonable care to inspect the workplace or ensure that the
employer had workers' compensation coverage for the student.
Nor could the agreement be read to create such a duty. It did not assure the
student or represent to her that the school would inspect the workplace to see
that it was safe.
Indeed, the agreement placed the duty to provide a safe work environment
"squarely on the [*89] plaintiff's employer" by requiring the farm "to abide
by  labor and wage laws as they may apply to this employment."
The court observed that it was the student's responsibility to find a job
placement and that the agreement merely indicated that calls or site visits
would occur to ensure that both employer and student would "get the most out of
The school was not obligated to ensure that the employer actually was insured.
The statement in the agreement mandating insurance served only as notice to the
student and employer of the employer's responsibility to obtain insurance.
B. Finding a Duty
Some cases have found a duty in situations analogous to the legal extern. In
Silvers v. Associated Technical Institute,
Massachusetts Superior Court found that a post-secondary vocational school owed
a duty of care to a student who was referred by the school placement office to
an employer who hired her and then sexually harassed and assaulted her. The
school touted its placement services in promotional literature and mentioned
them in its course catalogue and enrollment agreement. The school also verbally
notified the student that it would attempt to put her in a job in her field.
When the placement office received a telephoned job order for a "Female tech for
Communications switching complex -- a lot of travel -- part-time," it sent the
prospective employer the student's resume without first consulting her or making
any investigation of the employer.
Minimal investigation would have revealed that the employer, Winchester
International Group, consisted of a husband and wife and operated out of their
home. In addition, just eight years before, the husband was convicted of
indecent assault and battery.
The student accepted an offer for employment from Winchester International Group
because she assumed that the placement office "would only refer her name to
legitimate employers which it had screened."
She worked for Winchester for a month and a half, and in that time her employer
"sexually assaulted and harassed her, insisting that she share a room with him
on business trips, walking naked in her presence, touching her [*90] against
her will, and forcing her to have sexual intercourse," before firing her for
refusing to submit to his sexual demands.
The student filed a negligence action against the vocational school, which
contended that it did not owe her a duty "to investigate the background of every
employee of every employer using its placement listings or to scrutinize job
orders for potential violations of employment law and . . . that it could not
foresee criminal assaults by the employees of prospective employers."
Such a duty, the school argued, would expose the school to suits for invasion of
privacy, deter employers from using their services, and violate Commonwealth
policy of encouraging gender-neutral hiring.
The court analyzed this as a case of contractual undertaking. By receiving the
student's tuition payments, the school agreed to provide her a training program
and job placement assistance. The school thus committed itself to exercising due
care in delivering those services.
Recognizing that generally, without a special relationship, there is no duty to
protect people from the wrongdoing of others, the court explained that,
nonetheless, the primary test for the existence of duty is whether the defendant
should have "foreseen a reasonable need for proactive intervention and -- most
important -- a substantial risk of harm to plaintiff from failure to act."
The court also stated that as the harms a defendant may foresee change with "the
evolving expectations of a maturing society," the special relationships that
trigger a duty to take affirmative action with reasonable care also change.
The court concluded that students at the vocational school would reasonably
expect the placement office to take some effort to avoid placing them with
employers likely to harm them.
In this case, the court believed that the female-only job order should have
prompted an inquiry, particularly in light of statutes prohibiting sexual
harassment in employment.
Imposing a duty on the placement service to exercise reasonable care not to
place students with employers who discriminate would foster state policies
against such discrimination.
The court described the duty as an "inquiry into the reasons that an employer
has specifically requested a female candidate," that did not need to be
"intrusive" or "Orwellian" or cover every [*91] employee of each prospective
The court did not describe what conduct would satisfy the duty but stated that
it "requires more than what defendant did here."
In Harrington v. Louisiana State Board of Elementary and Secondary Education,
a Louisiana appellate court ruled that a community college owed its students a
duty of care in hiring an instructor for its culinary apprenticeship program.
A twenty-yearold student at Delgado Community College, Kimberly Harrington
volunteered to be a teaching assistant to John Veller, director of the culinary
In this position, Veller "screened and interviewed applicants, placed students
in hotels and restaurants as apprentices, and met with chefs and owners, often
during nighttime hours."
Half his work was in the field.
When Veller was hired, no one inquired about his past, verbally or on his
Typically, the school checked teaching credentials and nothing more.
Veller had a criminal record, with convictions for possession of marijuana with
intent to distribute, theft, and interstate transportation of forged securities.
In addition, he had used two aliases and had an outstanding warrant for his
arrest in Illinois.
One night, after assisting Veller with a wine tasting, Harrington went with him
to meet chefs and restaurant owners. One stop was at the home of a restaurant
owner. When Veller and Harrington returned to Veller's car in the restaurant
owner's driveway, Veller raped Harrington.
He was subsequently convicted of the crime.
Harrington sued the Board of Education for Delgado's negligence in hiring an
instructor with prior felony convictions.
Under a Louisiana statute, employers could be held primarily liable for
negligent hiring, but a court still had to determine whether a duty existed in
the particular case.
The court [*92] found that a duty of reasonable care in hiring exists when
performing the duties of the job will give the employee a unique opportunity to
commit a crime against a third party.
The court limited this duty to situations "where the plaintiff met the employee
as a result of the employment and the employer would receive some benefit from
the meeting had the wrongful act not occurred."
Under this rule, the court determined that the community college had a duty to
use reasonable care when it hired a professor who would be placed in a position
of authority that enabled him to harm a student.
"A professor is in a position where character, moral turpitude, and a clean
record should be essential. The risk of being raped or harmed by a professor in
a position of authority can be associated with the duty to use reasonable care
The case most analogous to legal externships is Nova Southeastern University,
Inc. v. Gross.
As a Ph.D. candidate in the Nova Southeastern University psychology program,
twenty-threeyear old Bethany Gross was required to complete an internship and
assigned by the school to work at Family Services Agency.
After work one evening, she was abducted at gunpoint from the agency parking lot
and robbed and raped.
Gross filed a negligence action against the university and in response to the
defendant's summary judgment motion presented evidence that before her attack
Nova was aware of a number of criminal incidents in or near the parking lot.
The trial court granted summary judgment, but Florida's Fourth Circuit reversed
that ruling, and the Florida Supreme Court upheld the appellate court ruling.
Nova argued that it "did not owe Gross a duty because she was an adult student,
and therefore not within the ambit of a special relationship between a school
and a minor student,"
which exists because mandatory schooling forces parents to rely on schools to
protect their children during school activities.
University attendance, on the other hand, is not mandatory, and universities
[*93] do not stand in loco parentis to adult students. Therefore, according to
Nova, this case did not present a special relationship giving rise to a duty.
The Florida Supreme Court responded that the appellate court had not found a
duty to Gross in the relationship between a minor child and public school
The district court had characterized the relationship as "essentially the
relationship between an adult who pays a fee for services, the student, and the
provider of those services, the private university."
Within that relationship, the control that Nova exerted over students by
mandating internships and assigning sites imposed a duty to act reasonably in
making the assignments.
Given Nova's knowledge of unreasonable dangers at the site, the question of
whether Nova breached that duty should not have been taken from the jury.
The court declined to think of the university as different from any other legal
entity that must act reasonably in its activities: "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."
Liability was premised upon negligent conduct and not upon a failure to act.
Nova's duty was not one of general supervision but of ordinary care in assigning
students to internship sites. That could include, but was not necessarily
limited to, a duty to warn of the known dangers of sites. The court did not
state what acts would fulfill the duty but compared the obligation to that found
in Silvers: "'students . . . could reasonably expect that the school's placement
office would make some effort to avoid placing students with an employer likely
to harm them.'"
A final critical feature of the case is that the court recognized that
weaknesses in the plaintiff's prima facie case and strong defenses should not
remove the case from the jury on no-duty grounds. In other words, the Florida
[*94] Supreme Court did not equate duty with liability. Although Nova argued
that it owed Gross no duty because she was aware that Family Services Agency was
in a dangerous area, her awareness of danger was relevant to breach, causation,
and comparative fault and did not eliminate a duty of care in making practicum
V. Predicting How Courts Will Rule
Nova Southeastern cannot signal on its own that duties will now be found to
student interns and externs. The law remains unsettled, and although courts more
frequently impose duties upon colleges and universities,
no consistent model for doing so has emerged. Part V ponders how courts
are likely to rule on the duties that law schools owe to student externs by
considering first, in Section A, the possibility that courts will improperly
rely on the outdated Bradshaw line of cases, which could sound particularly
convincing with regard to adult, graduate students working away from their
campuses. Even courts that reject the no-duty bias of the Bradshaw line may
still be influenced by their characterization of students' suits as nonfeasance
cases requiring special relationship exceptions or a voluntary assumption of
duty. Section B, therefore, considers how courts are likely to apply the special
relationship and voluntary assumption principles to the legal externship.
A. The Lingering Influence of the Post-Immunity Bradshaw Line of Cases
In a case decided as recently as 2000, lawyers for Nova Southeastern University
relied on the reasoning of post-immunity cases that colleges do not owe adult
students a duty of reasonable care to protect them from third parties because
college students are adults who are not in a custodial relationship with their
Although their argument failed, it demonstrates the continuing force that this
view has for university counsel and suggests that the law student who sues her
school for injuries in an externship can still expect an argument based on these
cases. Despite decisions critical of the Bradshaw line and a judicial trend more
receptive to students' duty arguments, some courts may still choose --
incorrectly -- to apply Bradshaw and its offspring to reject a duty to the legal
extern. These cases do continue to be cited,
and courts could find the false logic of this line to ring more true when
applied to the legal extern wounded by an angry client or molested by her field
supervisor than to the undergraduate injured by her own intoxication or a
Although the post-immunity cases too readily view the university as a bystander
to student injuries and therefore the student's claim as requiring an [*95]
affirmative duty, courts may more convincingly characterize the law school's
role in externship injuries as nonfeasance and a third party as the sole risk
creator: while away from the law school, working under someone else's direct
supervision, the law student was injured by a third party. Indeed, the Bradshaw
line of cases is so dismissive of the idea that the foreseeability of injuries
triggers responsibility for student safety that courts disinclined to impose a
duty might apply these cases to characterize the law school as a bystander even
when it has sent the student to a site known to be unreasonably dangerous. When
the court characterizes the law school's conduct as inaction that did not create
the risk to the student, the student will have to demonstrate either that she
stood in a special relationship with the law school or that the law school
voluntarily assumed a duty of care to her, and she should find this even more
difficult under a Bradshaw-type analysis than the unsuccessful undergraduate
plaintiffs before her.
A court following the post-immunity cases will require a custodial special
relationship to impose a duty
-- unlike more recent courts that have been willing to see the relationship as
special in other ways. Within that narrow view of the possibilities, the law
student is even more likely to lose the duty argument because the relationship
between extern and law school is more clearly not custodial and, therefore, not
special. The extern is not merely constitutionally adult; she is really adult,
with four years of college and at least two years of law school behind her. Some
externs may be in their thirties, forties, or older. The truly adult law
student, who can reasonably be expected to exercise greater care for her own
safety, certainly is not going to be considered in a relationship of dependence
upon the school for safety, especially when the point of the externship is to
take the student off-campus into a workplace setting beyond the physical control
and hands-on supervision of the school. A court guided by the post-immunity
decisions could voice astonishment that an adult graduate student participating
in an off-campus activity would expect more care than courts have granted
undergraduate minors on campus. Such astonishment would, of course, ignore the
fact that students' adult status was significant to the post-immunity courts
because they confused a limited ability to police student morals with the
ability to look out for student safety.
Still, when the injury stems from the law student's own dangerous choices --
like opening the office door to an angry client after hours -- the argument
against a duty to an adult student whose behavior is beyond the law school's
control can be persuasive.
Law school counsel in externship cases are also likely to emphasize the idea
from the Bradshaw line that a duty is inappropriate because the relationship is
educational and not protective.
Although subsequent cases have made clear that the university relationship with
students is more multi-faceted than a merely [*96] educational one, the case
rhetoric about the public policy value in giving students leeway to make their
own mistakes and learn from them has some force in the externship context. The
point of the externship relationship is to place students in the real situations
that they will confront as lawyers so that they can reflect, learn, and grow --
in part from their own mistakes.
The instructive mistakes that the externship provides are not limited to errors
in research, writing, or legal analysis but are expected in the wide range of
difficulties that lawyers face, and these could be argued to include potentially
dangerous interactions. The courts in Baldwin and Beach reasoned, after all,
that underage students needed to learn from injuries caused by their own and
their fellow students' illegal intoxication rather than be protected from such
mistakes and that enforcing prohibitions against underage drinking on campus
would interfere with students' learning for themselves the dangers of drinking.
Dangers to externs can be said to have curricular value -- teaching the lawyer
apprentice to handle an abusive boss, a volatile client, a necessary trip to a
dangerous neighborhood. On the other hand, as the Delaware Supreme Court
reasoned in Furek,
exercising some limited, reasonable care for externs, such as advance
instruction on common, dangerous situations for lawyers, should not really harm
the educational process. Students do not have to be injured to learn.
The injured extern should also expect the Bradshaw rhetoric that "the modern
American college is not an insurer of the safety of its students" to be used
A court not inclined to recognize the difference between an absolute duty to
protect and a limited duty to exercise reasonable care towards protection can
easily say that the impossibility of fulfilling a duty to a student is even
greater when the issue is keeping off-campus (possibly thousands of miles
off-campus) students safe from arguably unforeseeable harms (like criminal
attacks in a courthouse parking lot). Given the difficulty of providing safety
for a legal extern located off-site, particularly for a law school that approves
a wide variety of sites over a wide geographic range, a court could declare that
fulfilling the burden would be impossible so that any duty would contravene
public policy by automatically imposing liability to injured students, making
the law school their insurer.
A court that follows the Bradshaw line of cases is likely to resist finding
assumed duties, particularly if the court believes, like the Third Circuit, that
the duty assumed must be a custodial duty of care for there to be any obligation
at all to the law student and declines to consider the possibility that more
limited obligations were undertaken and possibly breached.
A Bradshaw-influenced [*97] court will not rule that creating the externship
program is itself the assumption of a duty of care in administering the
externship. By sponsoring a sophomore picnic, hiring resident assistants to
supervise a dormitory, and sending students on mandatory field trips, the
defendants did not assume duties of care in Bradshaw, Baldwin, and Beach.
Just as university rules regarding student conduct in dormitories did not impose
duties of enforcement in Baldwin and Rabel,
any language in the externship agreement regarding the extern or field
supervisor's behavior will not be found to impose duties of enforcement upon the
law school. Although the ABA mandates site visits,
their point is to ensure the educational value of the externship site, and so
the site visit will not be interpreted as an assumption of a duty to protect.
Even the Supreme Judicial Court of Massachusetts, one of the first courts to
question the Bradshaw logic and find that a student was owed a duty of care,
declined to find that a post-secondary vocational school had assumed a duty of
care to a student intern by contracting to make site visits to her internship.
Applying Bradshaw and its progeny to cases involving legal externs would be a
step backwards in the law governing the relationships between students and
universities. This line of cases has its roots in the judiciary's nostalgia for
a time when schools could exercise authoritarian control over students,
resentment over students' successful bids to obtain constitutional rights on
campus, and desire to treat colleges and universities as unique places deserving
immunity, despite the demise of the various doctrines that had long kept
institutions of higher education safe from liability. More thoughtful
jurisdictions have moved beyond the knee-jerk response that treats a college as
free from responsibility based on the idea that it is not the custodian of its
students and have recognized fundamental flaws in the Bradshaw logic, flaws not
overcome when the injured student is a legal extern. The post-immunity cases
often portray misfeasance as nonfeasance, equate duty with liability, assume
that the special relationship must be custodial, take an all or nothing view of
assumed duties, and refuse to ask schools to live up to non-gratuitous promises
Institutions of higher learning have often been actors creating risks in
situations in which they have been described as mere bystanders, and schools
often take on and then neglect safety responsibilities more limited than
custodial care. A duty of reasonable care does not mean absolute liability
whenever an injury occurs but liability when a failure to act reasonably causes
injury, and acting reasonably to reduce risks to students is not impossible,
even when students [*98] are adults with minds of their own. Courts have been
too quick to raise the duty shield, when the true question has been whether or
not a duty was breached, whether the lack of care was the cause of the student's
injury, whether the student's own fault has played such a significant role that
it reduces or bars the student's recovery. Fortunately, the approach taken
immediately after colleges and universities lost their immunity is no longer the
B. Beyond Bradshaw: Seeking a Duty Model in Current Law
1. An Analysis Still Centered on Exceptions to No-AffirmativeDuty Rules
A court that rejects the post-immunity assumption that colleges and universities
do not owe a duty of care to their students will not automatically conclude that
law schools do, therefore, owe their externs a duty of care. Law schools will
argue "no affirmative duty" when the legal extern has not been injured by the
law school itself but by a third party, and the duty dialogue may yet center on
whether the student was in some sort of special relationship with the law school
or whether the law school assumed a duty of care that it did not otherwise owe
In the special relationship inquiry, no court is likely to decide that the
relationship between law school and law student is per se special, as court
after court has refused to find the relationship between college and
undergraduate student to be special in itself.
In the case of a California Western law student attacked on property adjacent to
the law school library, a California appellate court explicitly ruled that the
relationship between a law student and a law school is not special.
Although the extern might argue that the relationship at issue is not the broad
relationship between law student and law school but a narrower relationship
between extern and law school, the externship generally does not place the
student in a position of dependence upon the school for safety by taking away
her own ability to watch out for herself,
and so courts would [*99] not be persuaded to expand the traditional
categories of special relationships to include law schools and externs.
Courts have, however, been willing to regard the aspect of the relationship that
led to the injury as falling within recognized special relationships -- landlord
and tenant, employer and employee, business and invitee.
Duty to the legal extern under a special relationship analysis may turn, then,
on whether the externship relationship is sufficiently similar to a relationship
already recognized as special -but not the relationships of custodian to ward or
school to student.
Courts should not necessarily have to focus on exceptions to no-affirmative-duty
rules in these cases. The affirmative duty analysis is triggered when the
defendant is accused of nonfeasance -- failing to take action to protect the
plaintiff from risks that the defendant has not created.
In some cases, the law school's role in an externship injury might well be
viewed as misfeasance -- active conduct that caused a foreseeable and
unreasonable risk of harm to the student.
Law schools do act in externship situations. How they act may vary from program
to program, but they do not stand idly by. Law schools approve, assign students
to, and visit externship sites. A faculty member communicates with the student
throughout the externship and may provide an orientation at its outset. Some
externships have a concurrent classroom component. When any of these actions
created a foreseeable and unreasonable risk of the harm that befell the student,
the court could choose not to describe the school's role as nonfeasance but as
misfeasance, relieving the student of the difficulties of proving a special
relationship or a voluntary assumption of a duty. If, for example, the law
school had been aware of unreasonable dangers in the externship neighborhood or
abusive behavior of the field supervisor but continued to send students to the
site, the act of placing the student would be misfeasance, and affirmative duty
issues should not arise.
Even if the field supervisor was not known to be a threat, the law school should
have a duty of care in a lawsuit based on harm caused by the supervising
attorney because the case would be premised on misfeasance. Choosing the field
supervisor is analogous to a negligent hiring case, such as Harrington.
As college education continues to expand beyond campus boundaries,
nontraditional [*100] instructors will be more common, and courts are likely
to find that their selection imposes a duty. It is important to point out here
the difference between duty and liability. Although law schools may have a duty
to exercise care in field supervisor selection, courts might require little more
than ascertaining that the attorney is a member of the bar in good standing
because lawyers are subject to character and fitness scrutiny to be admitted to
and remain members of the bar. The dangerous supervisor case might not be
winnable on duty but quite winnable on breach.
2. Nova Southeastern and the Business Model
The relationship between law school and extern is most likely to be compared to
the relationship between a business and a customer, the comparison made in Nova
Southeastern by the Florida Supreme Court.
Analogizing the legal extern to the clinical intern in Nova Southeastern, a
court may determine that in the context of the externship relationship, the law
school is a business providing an educational service and that the
student-customer is owed care in that service. The court may either use this
analogy to characterize the relationship as a special, business relationship
overcoming no duty rules, or as a case of misfeasance by a business in its
Like the student in Nova Southeastern, the extern is an adult graduate student
gaining real word experience for academic credit. The Florida Supreme Court
believed that she was owed reasonable care in those services as much as any
adult paying for services is owed care in their rendering. "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."
The court cited the opinion of a Massachusetts trial court, which found that a
postsecondary vocational school owed students care in its job placement
The placement office rendered services for a fee, promoted its school with those
services, and owed care in their rendering as any business would.
The externship program similarly places students with employers and collects
tuition from the student extern for the field placement.
Some schools tout their externship programs as part of their marketing programs.
By comparison, the law school may be found to be a business charging students to
place them in externship sites and to owe them a [*101] duty of care within,
at least, site selection.
Possibly courts will accept Nova Southeastern for the broad principle that when
colleges and universities place students in internships and externships for
supervised, academic credit and receive tuition from the students, that as a
business rendering services, they owe students some duty of care in those
On the other hand, a court might distinguish the program under consideration
from the clinical psychology practicum at Nova and decline to apply the
decision. The Nova practicum was mandatory. Nova developed a list of
pre-approved practicum sites, and the student chose six sites from the list.
Nova made the final site assignment from the student's choices.
The Florida Supreme Court found that by requiring the internship and assigning
students to a limited list of pre-selected locations, Nova had control over
student conduct that gave it a corresponding duty to exercise care in making the
A court that approves of the Nova Southeastern decision on its facts may reject
an analogy to a legal externship case if the law school had less control than
Nova exerted over the clinical psychology practicum. Because Bethany Gross had
to complete a practicum and was limited to one of Nova's pre-selected practicum
sites, Nova took away some of Gross's ability to care for herself, by denying
her the ability to reject field work and limiting her ability to reject
particular sites as too dangerous. Although some law schools may require
clinical experience for graduation, as Nova did, most do not. The law school's
control over site assignments might also be distinguishable. While some may
limit externships to a specific prosecutor's office or legal aid clinic or to a
list of specific preapproved sites, others have much less control over the sites
and allow students to locate their own externships and base approval of the site
on how meaningful the work will be and on no other considerations.
When a legal externship is an elective course and the student has freedom to
select her own site, a court might reject an analogy to Nova Southeastern
because the law school has not taken away the student's ability to care for
herself by rejecting a placement as too dangerous. Either variable -- whether
the externship was required and how much control the law school had over site
selection -- could support a law school's argument that it simply did not have
the kind of control shown in the Nova Southeastern case and so did not have a
In addition, where the student is primarily responsible for selecting the
externship site and the school's approval process is limited, the court may not
view the law school as in the business of providing field placement services,
but rather as providing a purely educational service, and therefore not find a
duty regarding site selection. Also, when the school is more detached from site
selection, [*102] there is less likely to be an obligation to warn of dangers
particular to a given site because these dangers will not be known to the law
A legal extern who convinces a court to adopt the Florida Supreme Court's view
of the duties owed to student interns will not succeed in holding the law school
to a sweeping duty of care in all aspects of the externship. In clarifying that
the duty to Gross could include, but was not limited to, warning of known
dangers at the particular site, the Florida Supreme Court quoted the appellate
court's statement that "We need not go so far as to impose a general duty of
supervision . . . to find that Nova had a duty, in this limited context, to use
ordinary care in providing educational services and programs to one of its adult
While declining to say what conduct would fulfill the duty, the court wrote that
it would involve "some effort to avoid placing students with an employer likely
to harm them."
Courts that have broken away from a broad rejection of duties to students
recognize that duty is not an all-or-nothing proposition and that duties can be
limited as is appropriate. When the Delaware Supreme Court used a business
invitee analogy to impose a duty on the University of Delaware to regulate and
supervise hazing, it concurred with the post-immunity cases that the "university
is not an insurer of the safety of its students" and stressed repeatedly that
the duty was limited, extending only to the acts of third persons that were
foreseeable and subject to university control.
Control could be found in the "authority to direct, restrict and regulate."
By analogy to Nova Southeastern, a court may find that the law school had a duty
to exercise care in the placement decision and a duty to warn students of known
dangers in the placement, but not a duty to provide on-going supervision and
investigation of the student's safety at the externship site. The duty to
protect student externs will be limited to facets of the externship experience
that the law school can control. A law school's argument, though, that control
is not possible because the externship is off-campus is not likely to carry much
weight as practical, off-campus experiences become more and more important in
the modern university and expand our concept of "campus." Also, control may be
found in the "authority to direct, restrict and regulate."
Therefore, a student could convincingly argue that control was possible by
forbidding certain activities from the outset of the externship. The law school
executes an agreement signed by the school, the student, and the field
supervisor, and this agreement could direct, restrict, and regulate what occurs
in the externship. The court [*103] could, however, correctly consider certain
restrictions at odds with the nature of the externship relationship, which is to
provide a real-world lawyering experience, and reject a duty to impose those
restrictions. Finally, control is not the only issue in limiting the duty. The
unreasonable dangers of the activity must have been foreseeable, and some
student injury claims will stem from risks that the law school could not have
If a court adopts Nova Southeastern in an externship case where site selection
is primarily the student's responsibility, dangers will often be less
foreseeable to the school, which may not be acquainted with the site beyond its
verification that work will be sufficiently valuable to earn academic credit.
Given the burden of investigating the safety of all potential sites and field
supervisors, weighed against the educational and social value of legal
a court is much less likely to impose upon the law school that does not restrict
externships to a limited, pre-approved list a duty to exercise care in the
placement decision or to warn of dangers particular to the site.
Sometimes, though, unreasonable dangers in the externship may become apparent to
the faculty advisor, and a court should impose a duty of care consistent with
the apparent dangers and the school's ability to exercise control over them.
When a student reported to me escalating verbal abuse from her field supervisor,
who had confessed both his attraction to her and that his medication made him so
angry that he had thrown chairs, I told her not to return to work and found
alternate assignments for her to complete the remaining two weeks of the
externship. Had I done nothing, and had the student been attacked by the field
supervisor, my knowledge of the danger and my ability to do something about it
would have supported a duty to exercise care to protect her from this situation.
3. Voluntary Assumption of a Duty
In the post-immunity cases, courts analyzed whether colleges and universities
had voluntarily assumed custodial duties of care and did not consider whether
more limited obligations had been assumed.
This all-or-nothing view of what duties could be assumed made voluntary
undertaking an ineffective argument for students because courts ruled that no
custodial care was assumed when schools promulgated rules against dangerous
student behavior, hired dormitory advisors, or sponsored student activities.
Today, courts do not assume that colleges and universities must undertake
custodial duties to have safety obligations to their students;
they are more willing to look at what acts and promises
the school has undertaken and to determine whether care was owed in [*104]
carrying out those acts and promises.
For example, a court will not refuse to find an assumed duty in
prohibitions against underage drinking on campus on the grounds that imposing
such rules is not a voluntary assumption of custodial care over students but
will instead consider whether the school had, by promulgating the rules,
voluntarily assumed a duty to enforce the rules.
A court will consider whether by hiring Greek advisors to attend fraternity and
sorority parties the college had assumed a duty to exercise care in supervising
The rules have not changed -- the courts' willingness to apply them accurately
has changed, and this makes the injured extern's chances of demonstrating a
voluntary assumption of a duty greater than they once would have been. The rules
require the legal extern to prove three things: that a safety obligation was
undertaken, that she was injured either because the undertaking increased the
risk that befell her or because she relied on the undertaking, and that the
responsibility she seeks to impose on the law school falls within the scope of
The first important point is that to have assumed a
duty, the defendant must have undertaken a safety obligation -- "rendering
services to another which he should recognize as necessary for the protection of
the other's person or things."
In Mullins, the college had provided campus security.
In Furek, the university established rules against hazing and attempted
to enforce them.
In Coghlan, the school had staff supervisors attend Greek parties.
Having undertaken specific acts for the safety of their students, the schools
had a duty to exercise care in those acts -- providing security, enforcing
prohibitions against hazing, supervising fraternity parties.
A student could not argue successfully that simply by establishing an externship
program, the law school had assumed a duty to exercise care to protect her from
third-party dangers within the program. (After all, it's quite clear that
establishing a university does not create a duty to protect students from
third-party dangers at the university.) The student must show that the law
school undertook to render services that it recognized as necessary for her
Whether the law school assumed a duty of care in assigning students to
externship sites would depend upon the nature of the externship program. When
the program is linked to one or a very few sites, the choice to join forces in a
long-term relationship with those sites could be considered rendering a service
necessary for the safety of externs because the approval process for an on-going
partnership with a site might well involve considerations of site safety, and
students might expect safety to have been considered in long-term site
selection. When the law school leaves the site choice primarily to the student,
an undertaking is not likely to be found because then the approval process will
be more about ensuring that the student will be given meaningful work and
experiences and not used as a free, glorified go-fer.
Another place that the student might seek to demonstrate an assumption of duty
is in the externship agreement. If the agreement does not specifically make
promises related to the student's safety, it should not be enough to show an
In Judson, the externship agreement required the school to visit the internship
site, and so the student argued that by agreeing to visit the site, the school
had agreed to investigate the safety of the site and had breached that
obligation. The court interpreted the point of the visits to be educational, to
ensure that the student would learn as much as possible from the experience, and
therefore did not interpret the visits as a voluntary assumption of a duty of
care in making the visits.
Similarly, the ABA requires site visits to ensure the educational value of the
and faculty visits to the field placement should not be interpreted as voluntary
assumptions of a duty of care in those visits.
Externs might also point to orientation meetings as assumptions of duty, but
when an orientation addresses only requirements for reporting hours, turning in
journals, completing work assignments, and the like, the law school has not
undertaken services that it "should recognize as necessary for the protection of
the other's person or things."
On the other hand, when the orientation warns students of dangers in the
externship or counsels them how to handle dangerous situations, this is an
undertaking related to student safety, and if the other requirements [*106]
for voluntary assumption are met, a duty of reasonable care in providing those
warnings would be imposed.
Undertaking to provide safety is not, by itself, enough to establish a voluntary
assumption of a duty. As the court explained in Mullins, the
plaintiff must have been injured either because she
relied on the undertaking to be effective in protecting her or because the
undertaking increased the risk of the harm that befell her.
The court found that Mullins, who had visited a number of colleges, had seen
security measures on campus and relied on them to protect her.
In Furek, the university's complete incompetence
in enforcing its hazing prohibitions increased the danger to Furek of
being injured by fraternity hazing.
So, for example, if a law school has undertaken a safety service by its site
approval process, a student attacked in the parking lot of one of the sites will
still have to demonstrate that she was injured because the site assignment
increased the risk of that injury to her or because she relied on the law
school's care in making assignment.
If the site is not unreasonably dangerous, site selection cannot be shown to
have increased the risk to the student. If the student's testimony indicates
that she did not drop her guard or choose to walk alone to the lot because she
expected the school to have chosen the site with care, then injurious reliance
will be difficult to show. Also, reliance will be difficult to prove if the
student fully realized the dangers of the site before registering for the
Similarly, reasonable orientation advice that does not encourage students to
engage in risky behaviors or create a false sense of security that students rely
on to their detriment should not be the basis for an assumed duty. Unreasonable
orientation advice, however, could increase the risk of harm to students ("Never
pass up an opportunity to work alone with your boss after hours") or induce
reliance ("Although you should be alert, we wouldn't send you to a site we
hadn't checked out thoroughly") and support an assumed duty theory.
Finally, the assumed duty will be limited to the scope of the undertaking.
For example, by providing an externship orientation that gives general safety
advice, the law school does not assume a duty regarding site inspection or
supervision but assumes only a duty to exercise care in giving the warnings.
[*107] Even where a court believes that the site assumes a duty of care in
site selection, it will not expand that duty to encompass safety supervision at
As I have mentioned, one of my former externs worked for an abusive supervising
attorney. As she began her externship, I did not have a duty to protect her from
him, but she sought my counsel on how to handle him, and I advised her. We
talked regularly about strategies for keeping matters professional, and I sent
her articles on corporate psychology and how to manage a difficult boss. By that
counsel, did I assume a duty to her?
First, did I undertake services that I perceived as important to her safety?
Based on our interaction as I have just described it, the lawyer for the law
school would likely argue that I advised the student regarding "keeping matters
professional" and did not begin rendering services for the extern's safety. And
that is an accurate description of our initial consultations. At first, I just
thought that the supervising attorney was overly critical and insensitive, and
when I first talked about his harsh criticisms and sent the articles, I was not
motivated by concern for the student's safety but wanted to help her manage the
field supervisor so that he would provide clearer and more appropriate
expectations, priorities, and feedback. At that point, no safety duty was
assumed. After time, though, the supervisor began to appear potentially
dangerous to the extern because of his mercurial temperament, which he admitted
was affected by medications, and our conversations turned to her safety working
in his office. I began to question her about her perception of the degree of
threat that he presented. It may be that a court would find that once I began
any conversation focused on safety, I had begun rendering services related to
her safety. Certainly, when my advice became safety advice, the first step
towards establishing a voluntary assumption would be met.
My former extern was not physically harmed by her hottempered supervisor, and so
the question of whether I assumed a duty by rendering safety advice now becomes
If one evening, working late on a project, the student went into the attorney's
office where he berated her and then threw his chair at her, striking and
injuring her, the next question would be whether my advice in any way increased
the risk of that danger. If, for example, I gave [*108] her suggestions about
how her work product and behavior might avoid conflict but did not tell her that
she should not remain alone in his solo office with him after hours, she might
claim that by omitting that warning, my advice increased the risk to her. I
might also be argued to have increased the risk if I had advised her to be more
assertive and her assertiveness then triggered the attack, or if I telephoned
the field supervisor to discuss his behavior and my comments set him off. The
extern could also contend that she relied on the undertaking if, for example,
she had been thinking about asking to be removed from the externship but
believed that because I had asked her questions about the office atmosphere and
had not suggested her removal, she remained on the site in reliance on my
assessment that it was safe. If I spoke with her field supervisor regarding my
concerns about his temperament and then reported back to the student that I
thought the conversation had gone well, she could contend that she worked late
with him because she assumed I had reduced the danger.
Whatever duty I assumed, though, would be limited to the scope of my
undertaking. If all I undertook to do was advise the student about how she
herself could best handle her temperamental employer, she may not be able to
premise her claim on my failure to consult with the field supervisor or to
remove her from the site. She might be able to argue, though, that I had
voluntarily assumed a duty to assess the risks of her placement, and that I
breached that duty by underestimating the threat the field supervisor posed to
her. If I spoke with her supervisor, she might contend that I had undertaken to
reduce the dangers.
VI. Considering Duty Based on a Facilitator Model of
A. The Inadequacies of the Business Model
Duty rules for colleges and universities should promote a safe learning
environment, which the post-immunity cases, by placing all responsibility for
student safety upon the students themselves, failed to do. This imbalanced legal
model encouraged colleges and universities to stand idly by in the face of risks
to students because they feared that any protective action would assume duties
not otherwise owed.
Judicial use of business models to impose duties attempts to provide a more
appropriate balance of responsibility, and courts can be expected to continue to
analogize colleges and universities to landlords, employers, and other
businesses because this is familiar territory and does not require the courts to
develop a model specifically for the relationship between college students and
Still, while the business model does seek to balance safety obligations on
American campuses, the model is imposed by way of analogy and is not tailored to
the unique features of colleges and universities. [*109] Duty, though, is
dependent upon the nature of the relationship between the parties, and college
students deserve a model that reflects their unique situation, not one cobbled
together by a series of analogies to other relationships. The business model
ignores that the university is not an ordinary business and that "students are
not ordinary consumers buying a sandwich or shirt."
Critics have contended that a business model tends to divide responsibility
rather than establish the shared safety responsibility appropriate to life in
the college community,
does not address the unique aspects of the business of running a college or
university, and cannot strike the right balance between university authority and
student freedoms, so that it is too protective of students in some situations
and not protective enough in others.
Another flaw in decisions that apply various business models of special
relationships to universities and students is that these cases consider special
relationships at all. The post-immunity era so entangled the duties of colleges
and universities with the law of special relationships that courts generally
assume that the law of affirmative duties and special relationships must be
evoked whenever students sue their colleges for negligence.
Yet very often, the college or university has acted in a way that created a
risk, and the analysis should not turn to whether the school was acting in a
landlord special relationship or business special relationship or assumed a duty
of care to the student.
The [*110] business model cases perpetuate the incorrect assumption that all
these cases must be analyzed as affirmative duty scenarios that require injured
students to demonstrate special relationships or fit university actions into the
elements of a voluntarily assumed duty where the university simply may have
acted in a dangerous way appropriate for imposing a duty without such an
The law school is so closely involved in the student's use of its externship
"product" that it is more than a business selling an externship. The law school
guides the student through a practice run for life as a lawyer, with site
approval, an externship agreement, orientation, faculty supervision, and site
visits. In this practice run, the adult law student is given real work by a real
employer away from the campus, and so the relationship must, for practical
purposes, place significant safety responsibility with the extern. A straight
business analogy is a clumsy fit for this delicate balance of control and
A reality of this practice run is that legal externs will be exposed to the
dangers that lawyers face daily, and a model that places all responsibility on
the extern on the grounds that this is a working adult may discourage law
schools from taking simple steps that will make the externship safer, while a
model that imposes broad safety responsibilities on the law school as a business
pocketing the extern's tuition payment could fail to recognize the adult law
student's own significant responsibility for keeping safe in an exercise in
making the transition to being responsible for one's professional life. Finally,
the duty model applied to externships should consider that there is a third
party with significant responsibility for the student's safety -- the firm,
agency, or other office where the student works.
When a court turns to a business model, it has assumed that the case is based on
nonfeasance when such an assumption may simply be incorrect. The business law
approach looks at all university conduct not as misfeasance but as possible
voluntary assumptions of duty, when the key question may really be whether the
law school has acted in a way that has unreasonably exposed the student to
foreseeable dangers. The Nova Southeastern case, for example, seems to blur the
question of the care owed by businesses in all services that they render with
the issue of voluntarily assuming a duty and thereby being obligated to carry it
This creates a knotty problem of trying to sort out what externship behaviors
are business behaviors in which care is [*111] generally owed and which are
voluntarily assumed duties in which care is owed limited to the scope of the
As the next section discusses, a fitting duty model for externship programs
seems to be the facilitator model proposed by Professors Bickel and Lake.
Describing appropriate university conduct, their model accurately mirrors the
externship relationship as one in which the college or university provides
"information, training, instruction and supervision, discussion, options, and,
in some cases, withdrawal of options" to create an atmosphere in which students
make choices for themselves and bear significant responsibility for the
consequences of their choices.
In this model, unreasonable risks that arise from the university's improper
planning, guidance, and instruction are borne by the university, and comparative
fault plays a significant role.
The model works well, too, by detaching the law of duties owed to colleges and
universities from the law of affirmative duties and special relationships and
using a duty balancing test to decide the issue.
B. The Facilitator University -- An Appropriate Model for Externships
1. The Facilitator Model
In reality, the responsibility for the legal extern's safety will be shared, and
so the proper legal model for the relationship should reflect that reality.
During the externship, the law student will, for practical reasons, shoulder
significant responsibility for her own safety because she is away from campus in
a real-world experience, where what the school can do to protect her is limited.
Yet the law school does establish the rules for and often the setting of the
externship, provide guidance to the student, and act in other ways that
influence student safety. The facilitator university model developed by Robert
D. Bickel and Peter F. Lake is particularly suited to reflecting the reality of
the relationship and guiding law school behavior and judicial analysis of the
duty question regarding externships.
"A facilitator college," according to Bickel and Lake, "balances rights and
responsibilities -- it is neither extremely authoritarian nor overly solicitous
of student freedom. Importantly, a facilitator college seeks shared
responsibility rather than allocating it unilaterally or not at all."
A [*112] facilitator university places a significant amount of responsibility
for student safety on the students themselves, but -- like the well-run
externship program -- it also "provides as much support, information,
interaction, and control as is reasonably necessary and appropriate in the
situation" for students to exercise that responsibility intelligently and adapts
to the needs of the particular student body.
Unlike parents, facilitators do not choose for students. Students must choose
for themselves and shoulder significant responsibility for outcomes of their
choice. The key is that the facilitator manages the parameters under which
choices are made. Information, training, instruction and supervision,
discussion, options, and, in some cases, withdrawal of options are all
appropriate for facilitators. A facilitator (instructor or student affairs
professional) is keenly aware of aberrant risks and risks known only to the more
experienced. A facilitator is very aware of the types of students and the
particular university community. Limited roles are fine for adult students who
'just want classroom education.' Greater roles are usually appropriate for less
mature tweenagers, particularly those in full time on-campus living
arrangements. In other words, a facilitator adapts and varies the level and
nature of involvement.
The facilitator university does not abdicate its authority or proper duties and
accepts responsibility for "those unreasonable risks that would arise from lack
of proper university planning, guidance, instruction, etc."
Furthermore, "the facilitator is responsible to provide reasonable conditions of
background safety in the interest of the student's educational pursuits."
As an example, Bickel and Lake suggest, clearly thinking of Nova Southeastern,
"A facilitator university would allow a student to visit a family services
center on her own, but it would not assign her there as an intern without making
some determination that it was a reasonably safe place for her to be and that
she would receive proper orientation at the facility."
The modern facilitator university should be alert for potential dangers to
students and facilitate positive behavior by students to avoid those dangers.
Within this model, comparative fault is important, [*113] and the student who
fails to exercise carefully her responsibility for her own safety should find
her recovery reduced or barred.
But unlike the bystander model, the facilitator model does not find that student
responsibility means no university responsibility, that student negligence means
no university duty.
This model distinguishes duty from liability and encourages reasonable
facilitation of student activities. When the university has acted as a
reasonable facilitator, the student will survive a summary judgment on duty
grounds, but the jury will rule in the university's favor because it did not
breach its duty. When the university did not act reasonably, but unforeseen
events or significant carelessness by the student plaintiff led to the injury,
duty will not keep the case from the jury, but the university should win on
causation or bar or significantly reduce student recovery on comparative fault
grounds. If the question is reasonable facilitation, the duty issue is separated
from the murky area of the law of affirmative duties, special relationships, and
voluntary assumption of duty because it is no longer necessary to distinguish
nonfeasance from misfeasance, misfeasance from assumed duties.
Bickel and Lake hope that universities will use the facilitator model to guide
their practices regarding student safety and that courts will use the model to
understand the nature of the relationship between college and student and to
guide their duty analysis and impose those duties appropriate to assign a
The question remains whether this model can create some predictability in this
area of the law. The facilitator model, after all, involves much flexibility.
The university adapts to the student body and to different situations; the
balance of rights and responsibilities depends upon the types of students and
the type of situation at hand. How, then, can the facilitator model create
predictability? The best test for this, Bickel and Lake believe, is a
policy-driven factor analysis that "may be the only undeniable point of
consensus among all the disparate cases of the last few decades."
In determining whether the college owed the student a duty, the court should
(1) foreseeability of harm;
(2) nature of the risk;
(3) closeness of the connection between the college's act or omission and
(4) moral blame and responsibility; [*114]
(5) the social policy of preventing future harm (whether finding duty will tend
to prevent future harm);
(6) the burden on the university and the larger community if duty is recognized;
(7) the availability of insurance.
Existing case law, they say, has shown how these principles should be applied in
certain recurring scenarios, and it will fall upon courts in future decisions to
be clear about what will and will not be required under a factor analysis of
The advantage is that in the future, the discussion will be more
straightforwardly and accurately about the kind of relationship truly shared
between college and student, no hiding behind de facto immunities, no
shoe-horning the relationship into familiar categories.
How, then, would the facilitator model apply to the externship situation? There
are two concerns: how does the law school behave as a reasonable facilitator of
the externship, and when should courts impose duties upon the law school under
this model? The next two sections address these questions.
2. Using the Facilitator Model to Guide Externships
In the externship program, the facilitator law school, the extern, and the
supervising attorney in the field will share responsibility for the student's
safety. A significant amount of that shared responsibility will fall upon the
law student, who, for most safety issues, will be in a far better position than
the law school to keep herself safe. Nonetheless, shared responsibility does
place some safety obligations on the law school and upon the externship site.
In planning and structuring the externship, the law school can address the issue
of reasonable background safety.
A significant part of background safety is site selection. Sometimes the law
school is solely responsible for choosing the site, as when it creates an
externship program that is connected to a limited list of sites. In that
situation, it has a responsibility to determine that the site has no
unreasonable dangers, particularly the kinds of dangers that good orientation
advice cannot significantly reduce. This responsibility must fall upon the law
school because it is not a responsibility that can be shared with the student;
the law school is making the choice, not the student. On the other hand, when
the student chooses the site, and the law school's approval is limited to the
educational value of the placement, the far greater share of the responsibility
for a safe choice should lie with the student who is making the choice. The law
[*115] school should advise students to consider safety in making the choice
and make clear that the school has no opinion regarding the safety of the site.
The externship agreement should state that the student has chosen the site, that
she understands that the law school has not evaluated its safety, and that she
assumes the risk of dangers in the site.
Sometimes, though, when students choose their own sites, other students will
have worked at the sites before them. Law schools should keep track of safety
concerns raised by students and faculty mentors regarding individual sites. If
concerns are raised about a site's safety, some responsibility should lie with
the law school before sending another student there because the school now has
reason to be concerned about safety and does have the ability to do something
about it. It can withdraw the option of this particular site, if the prior
student's accounts suggest it is unreasonably dangerous. When externs go to
sites where previous externs have worked, they may be less vigilant for their
own safety, assuming that the site has not presented problems, or they would not
have been sent there. If the school does not regard the dangers as so high as to
be outweighed by the value of the experience the site affords, the school must
at least give students the information necessary for them to decide whether they
want to accept the site and to keep the appropriate vigilance if they do go
The law school cannot provide physical protection to students at their
externship sites, but as a facilitator, it can provide at an externship
orientation the information that will help students make good choices about
their own safety. Although law students are adults and some have come to law
school from other careers, a sector of the externship population will have gone
from their high schools to a college campus to a law school campus and may yet
be unsophisticated with regard to the wider world. Law schools should not
hesitate to provide general safety information for fear that by doing so they
will have assumed broad duties with regard to safety. The only duty assumed by
providing safety information is to give that information with reasonable care.
Students might be cynical, as they are law students, that safety talk is just an
attempt to place legal liability on the student. This advice might be more
convincing if it comes from someone outside the school. Also, should concerns
have arisen about any particular sites, but not to the level that withdrawal of
the site would be appropriate, students should be alerted to known dangers at
particular locations. This provides them the information they will need to keep
Student safety can also be addressed in the externship agreement. As an
agreement among three parties, the law school, the law student, and the field
supervisor, the agreement can place certain obligations with the supervising
attorney to ensure that the student receives proper information about any safety
[*116] issues particular to the site or work assignments that she will
It can require the field supervisor to agree to abide by law school regulations
regarding sexual harassment and other forms of discrimination.
The agreement can also prohibit activities that the school finds too risky, such
as, perhaps, over-night travel with field supervisors of the opposite sex.
Throughout the externship, the student communicates with a faculty advisor. If
anything in the conversation raises alarm bells, the faculty advisor should
discuss it with the student to ensure that the student knows how to handle such
situations and to discern whether the student is exposed to an unreasonable
danger. A student told me in her e-mailed journal that she had been working
alone at night in the office when an angry client began pounding on the door
demanding to be let in. At the time, I did not realize I was following a
facilitator model, but I questioned her about what she had done. As it turns
out, she did not open the door and called one of the attorneys to determine just
how scared she should be of this particular client before she attempted to walk
to her car. We discussed her parking arrangements and how safe they were and how
often she worked alone at night and whether that was a good idea or not. If our
conversation had not assured me that she faced no unreasonable dangers, I could
have, as a facilitator, withdrawn certain options from her.
I could have told her that she was not to work alone after hours and could have
explained the reasons to her field supervisor. Fortunately, this step was not
necessary because through supervision and consultation, I felt comfortable that
the student was safe. If a student in an externship raises particularly high
safety concerns -such as a sexually harassing supervising attorney -- the
student may need to be removed from the placement.
The point of site visits is educational, but should any concerns arise during
the visit, the faculty supervisor should address them with the field supervisor
and the student. The site visit should not turn into a safety inspection, in
part because the kinds of dangers most likely to affect students would not be
observable in the site visit. The site visitor would not notice the irate client
who may show up the next day in a rage, and the sexually harassing field
attorney is likely to be on his best behavior during the site visit. If the
professor who supervises the student's journals is not the same professor who
makes the site visit, the two should communicate before and after the site visit
regarding any safety concerns. When safety concerns arise, a conversation should
be held with the student and with the field supervisor. The point of talking to
the supervisor is to find out what degree of danger is involved, and the point
of talking to the student is to assess whether the student is aware of the
danger and knows how best to conduct herself to avoid that danger. [*117]
Law schools have limited control over the safety of students in externships.
Their greatest point of control is in site selection, in making sure that
students are not sent to unreasonably dangerous sites. Beyond that, all that
they really can do is guide and advise the student about how best to keep safe
in general and with regard to any known dangers at the site. They can, through
the journals, keep an eye out for safety concerns, and when those arise assess
the student's ability to deal with those dangers and speak to the field
supervisor if necessary. The only other control that the school has is to remove
the student from the site if dangers seem unreasonable. Students, though, may be
resistant to this if it means losing the credit for that particular term. At
such a point a waiver may be appropriate. Courts are more likely to impose
duties upon colleges and universities with regard to student safety, and
therefore schools must avoid liability by not breaching obligations rather than
by doing as little as possible out of fear of assuming duties they would not
otherwise have. To avoid liability for student injuries, schools should act as
reasonable facilitators to prevent such injuries.
3. Judicial Application of the Facilitator Model to Externships
I supervised a student extern who worked for a solo practitioner specializing in
international law. One day the student called me because her field supervisor
had asked her to go on a business trip with him to Italy and she wanted
permission to accompany him. This was the same field supervisor who, she had
disclosed to me earlier, told her that she had been hired because she was
pretty. "Look around you," he said. "Do you see anyone unattractive in this
office?" She had also reported to me more than once his moodiness, quick temper,
and harsh manner of criticism. He also often dangled the carrot of whether he
would hire her at the end of the externship. Together with the head of the
externship program I made clear to her that she was forbidden to take the
But what if we had allowed the student to travel outside the country and the
supervising attorney had harmed her in some way on the trip? If the extern sued
the law school, could the school argue that it had no duty to protect her from
her field supervisor and thereby escape liability?
Under the facilitator factor analysis, a court would first consider the
foreseeability of harm, which is the key element in determining duty. Here, a
sexist male attorney, who has not been particularly happy with a female
student's work product, wants nonetheless to take her with him out of the
country on business. The sexist male attorney has admitted that he finds the
student attractive, and he is known to have a hot temper. The chances that alone
in a foreign country this student will be vulnerable to some kind of sexual
assault, a severe nature of risk, by the attorney seem to be unreasonably high.
Also, with [*118] his temper, he could be foreseen to present some danger of
other physical attack. While defense counsel might argue that the closeness of
connection between the law school's act or omission and the student's injury is
attenuated, because it was the supervising attorney and not the law school who
inflicted the harm, this is a simple case where the student asked permission,
and the school, aware that granting permission would expose the student to an
unreasonable danger from the field supervisor, gave permission anyway. Had
permission been withheld, the student would not have been injured, and the
connection seems close.
Moral blame and responsibility would seem to lie with a law school willing to
permit a young woman to travel outside the country with a sexist male in a
position of power over her academic credit and career development.
The next issue is the social policy of preventing future harm. Future externs
will be safer if law schools recognize that they must exercise care in granting
permission to travel with a field supervisor who has presented some questions
about the danger he presents to the student. Schools will be less likely to
grant such permission, and so fewer students will be exposed to such dangers.
Indeed, schools may simply decide that traveling with field supervisors should
not be allowed.
Next we consider the burden on the university and the larger community if a duty
is recognized. Law school counsel might contend there would be a chilling effect
on useful externship experiences if schools become afraid to allow students to
travel with supervising attorneys, but this seems to be a weak argument.
Although one, small opportunity would be lost without travel, the externship
will still provide significant opportunities for the students to grow in their
legal analysis and writing, factual investigation, communications skills,
counseling skills, organization skills, and so forth. Law school counsel might
also contend that determining whether the travel opportunity presents a danger
would be burdensome, but a duty would only be imposed where dangers of the
particular travel opportunity are foreseeable. Here, they were. Courts should
not find that, broadly, travel with a supervisor presents a foreseeable,
unreasonable danger to an extern.
Finally, the court will consider who usually insures for such risks, and it is
likely that the law schools do not insure against student injuries in field
placements and more likely that they use the externship agreement to place that
responsibility on the law firm, agency, or other office where the student will
be working. Of course, where the student is a victim of an intentional tort by
the supervising attorney, it is unlikely that the site will have coverage for
the incident either.
On balance, it would seem that a duty was owed to this student to exercise care
in the decision whether to permit her to go on the trip. A serious, unreasonable
risk was foreseeable, and the student's injury was directly linked to the
decision to permit her to travel with the attorney. By exposing her to possible
sexual harassment or assault, the school seems to be morally blameworthy and the
burden was minimal: simply deny permission to travel outside the country with
the attorney. Future applications of such a duty would not be burdensome
[*119] in the sense that they deny significant opportunities to externs or
subject the public to less highly trained attorneys.
Outside this hypothetical, what predictions could be made as to how a
facilitator model, analyzed through the factors, would affect the issue of a law
school's duty to injured student externs? Again, the key issue is
foreseeability, and most often the kinds of dangers that will harm externs will
be the random, unanticipated sort. A client, unknown and unknowable to the law
school, bears a grudge against an attorney where the student is an extern, and
the student is injured in an attack on the attorney. An opposing party in a
divorce case, angry with the results of a hearing, attacks the extern. As these
are dangers that the law school could not anticipate, their lack of
foreseeability will weigh so heavily in the analysis that a duty should not be
found. In addition, with these possible but not probable events, the burdens
involved, if a duty is imposed, would be extreme, rendering the law school an
insurer of student safety.
The law school can control the factor of moral blameworthiness by acting
responsibly towards students, by not establishing sites known to be unreasonably
dangerous or returning students to sites where unreasonable dangers are known.
Another factor that should be considered is the social value of externships
themselves, which are training grounds for future lawyers, provide support to
public service and government agencies, and encourage some students to pursue
public service careers.
Courts, therefore, should be hesitant to impose any responsibilities that would
chill the externship experience.
The law regarding the duties that colleges and universities owe their students
continues to evolve and still is influenced by the post-immunity era in which
courts used the constitutional adult status of students against them to create a
de facto immunity through duty law. That influence is ever-decreasing as courts
become more and more open to imposing obligations of care upon institutions of
higher learning. What this means for law schools is that courts may compare the
externship program to a business relationship that imposes a duty of care upon
the law school, as it would upon any business rendering services, to exercise
care in that relationship. Under this business model, courts may be inclined to
limit the duty to care in site selection and warning of known dangers at the
externship site and certainly would not impose it for unforeseeable dangers or
those outside the law school's control. The fact that the externship is not
served on the law school campus will not, however, place the student's safety
outside the law school's control. Also, courts may be more willing to find that
by certain acts within the externship the law school has assumed a duty of care
in those acts. Finally, courts may move towards a facilitator model that regards
the nature of the relationship as one in which the school's primary role in
student [*120] safety is to plan, guide, instruct, train, and consult, and
where significant responsibility is placed upon the student herself for her own
safety. The critical point is that courts are likely to impose some legal
responsibility upon law schools for extern safety, and therefore, law schools
seeking to avoid liability should not depend upon no-duty arguments to shield
them but should instead conduct themselves so that no-breach arguments will.
For related research and practice materials, see the following legal topics:
Family LawParental Duties & RightsIn Loco
InjuryTortsNegligenceDutyAffirmative Duty to ActSpecial RelationshipsSchools
She was removed from her placement.
See infra Part II.B.
Nova Southeastern Univ., Inc. v. Gross, 758 So. 2d 86 (Fla. 2000).
Robert F. Seibel & Linda H. Morton, Field Placement Programs: Practices,
Problems and Possibilities, 2 Clinical L. Rev. 413, 423-24 (1996).
David F. Chavkin, Training the Ed Sparers of Tomorrow: Integrating Health Law
Theory and Practice, 60 Brook. L. Rev. 303, 318 n.53 (1994).
Seibel & Morton, supra note 4, at 417-18.
Id. at 413.
See, for example, the following law-school web pages, touting their externship
programs: Boston College Law School,
Pace Law School, http://www.law.pace.edu/jjls/externsh.html; Quinnipiac
University School of Law, http://www.quinnipac.edu/x1600.xml; University of
Michigan Law School,
of "independent" is in URL]; University of Missouri-Columbia School of Law,
http://www.law.missouri.edu/career/externshipprograms.htm; University of
Nebraska College of Law, http://www.unl.edu/lawcoll/externship.html; and
Whittier Law School, http://www.law.whittier.edu/career/career.htm.
See Robert MacCrate, Educating a Profession: From Clinics to Continuum, 64 Tenn.
L. Rev. 1099, 1128-29 (1997); Seibel & Morton, supra note 4, at 413. State bar
associations were responding to The Task Force on Law Schools and the
Profession: Narrowing the Gap, Legal Education and Professional Development - An
Educational Continuum, 1992 A.B.A. Sec. on Legal Educ. & Admissions to the Bar.
Because this report is commonly referred to as the "MacCrate Report," after the
task force chairperson Robert MacCrate, it will be referred to hereinafter in
this article as the "MacCrate Report."
ABA Standards for Approval of Law Schools § 302(c)(1) (2002).
Id. § 302(c)(2).
MacCrate, supra note 9, at 1131.
Jay M. Feinman, The Future History of Legal Education, 29 Rutgers L.J. 475, 480
(1998); MacCrate, supra note 9, at 1131; MacCrate Report, supra note 9, at 235,
MacCrate Report, supra note 9, at 235-36, 330-34.
See MacCrate, supra note 9, at 1131. The MacCrate Report is regarded by some as
a "landmark," C. Michael Bryce & Robert F. Seibel, Trends in Clinical Legal
Education, N.Y. St. B.J., June 1998, at 26, 27, and a "defining moment."
Feinman, supra note 13, at 480. For a more reserved analysis of the initial
impact and continuing significance of the report, see generally Russell Engler,
The MacCrate Report Turns 10: Its Impact and Identifying Gaps We Should Seek to
Narrow, 8 Clinical L. Rev. 109 (2001).
See Seibel & Morton, supra note 4, at 413-14; see also William Wesley Patton,
Creating an Externship Consortium: The GLACE Experience, 4 T.M. Cooley J. Prac.
& Clinical L. 233, 242-49 (2001).
See Liz Ryan Cole, Lessons from a Semester in Practice, 1 Clinical L. Rev. 173,
See generally Marty Geer, Law School Externships: Building Another Bridge over
Troubled Waters, Nev. Law., May 2002, at 15; Lisa G. Lerman, Professional and
Ethical Issues in Legal Externships: Fostering Commitment to Public Service, 67
Fordham L. Rev. 2295 (1999).
See J.P. Ogilvy, et al., Learning from Practice: A Professional Development Text
for Legal Externs 1-2 (1998); Lerman, supra note 19, at 2296-97; Seibel &
Morton, supra note 4, at 419-20.
See Ogilvy, et al., supra note 20, at 1-2; Lerman, supra note 19, at 2295, 2297.
Lerman, supra note 19, at 2297.
Id. at 2295 (citing ABA Standards for Approval of Law Schools § 306(a)
interpretation 1 (1979)); see also ABA Standards for Approval of Law Schools
interpretation 3052 (2002); Ogilvy, et al., supra note 20, at 2.
Cole, supra note 17, at 175.
Seibel & Morton, supra note 4, at 420-21.
See Ogilvy, et al., supra note 20, at 3; Kimberlee K. Kovach, The Lawyer as
Teacher: The Role of Education in Lawyering, 4 Clinical L. Rev. 359, 373-75
(1998); see also Cole, supra note 17, at 177-78; Seibel & Morton, supra note 4,
See Ogilvy, et al., supra note 20, at 8; Kovach, supra note 26, at 374.
See Ogilvy, et al., supra note 20, at 7-9; Kovach, supra note 26, at 374.
See Stephen Kelson, An Increasingly Violent Profession, Utah St. B.J., March
2001, at 8, 8-9.
Id. at 8.
See Harold J. Bursztajn & James T. Hilliard, Ask the Expert--Violence Against
Attorneys and Judges: Protecting Yourself Before and After a Threat, at
http://www.forensicpsych.com/articles/artAskexp06.html (last visited Aug. 20,
See Stephen Kelson, Violence Against Lawyers, 23 Legal Prof. 197, 200 (1999)
[hereinafter Violence Against Lawyers]; Kelson, supra note 29, at 6.
See Violence Against Lawyers, supra note 29, at 4.
See Bursztajn & Hilliard, supra note 31, at 2.
See id.; Kelson, supra note 32, at 197. When I practiced law in central
Illinois, my local courthouse searched entrants only on the days of major murder
trials, and the attorneys could frequently be heard joking about this because
everyone knew that the courthouse was a much more dangerous place on the day of
a divorce or custody hearing.
Kelson, supra note 29, at 2.
See id. (citing Husband Charged in Court Stabbing, Vancouver Sun, Nov. 30, 1990,
See Violence Against Lawyers, supra note 32, at 200 (citing Man Kills Former
Wife's Lawyer, then Himself, Milwaukee J. Sentinel, Dec. 2, 1995, at 6).
See Kelson, supra note 29, at 4 (citing Panhandle Mourns 3 Slain in Courthouse,
Miami Herald, Jul. 30, 1987).
Id. at 4; see also Bursztajn & Hilliard, supra note 31, at 2.
Violence Against Lawyers, supra note 32, at 200 (citing Man Accused of Plot to
Kill Victim, Lawyer, Milwaukee J. Sentinel, Mar. 20, 1992, at A8).
Kelson, supra note 29, at 9 (citing Man in Stock Fraud Case is Charged with
Plotting to Kill Judge Who Raised His Bail, N.Y. Times, Aug. 10, 2000).
Id. at 4 (citing Arrest Made in Lawyer Shooting, Albuquerque Trib., Mar. 6,
2000, available at www.abqtrib.com/archives/news00/030700vigil.shtml).
Bursztajn & Hilliard, supra note 31, at 3. According to a clinical psychiatrist
who consults to attorneys nationally:
Certain explosive situations can compound the risk associated with a high-risk
case and/or client. Some examples are: (1) A client feels victimized by society.
(2) A client sees any authority (including government and the law) as the enemy.
(3) A client falls behind in paying legal fees, but still feels entitled to an
attorney's services. (4) A client has been inadequately prepared for the
traumatic aspects of litigation. (5) A client loses a case he or she expected to
win. (6) A client wins the case, but legal vindication does not bring the
psychological resolution the client desired. (7) When a legal impasse is
reached, the attorney offers to withdraw. The client, feeling abandoned and
helpless, becomes enraged.
See Violence Against Lawyers, supra note 32, at 200 (citing Claimant Kills
Lawyer, Self After Standoff, Chi. Trib., Sept. 20, 1996, at 14).
See id. (citing Neil Steinber, Man Charged in 2 Slayings at Loop Office, Chi.
Sun-Times, Feb. 28, 1994, at 11).
See id. (citing William Recktenwald, Lawyer is Slain in Loop Office: Shooting
Follows Dispute over Bill, Chi. Trib., April 30, 1996, at 1).
Stephen Wizner, Beyond Skills Training, 7 Clinical L. Rev. 327, 335 (2001).
Id. This example is from an in-house clinic and not an off-site externship, but
it illustrates the kinds of situations that students may find themselves in as
they leave the classroom and begin acting like lawyers.
Stephanie Benson Goldberg, Law's 'Dirty Little Secret', A.B.A. J., Oct. 1990, at
Deborah K. Holmes, Structural Causes of Dissatisfaction Among Large-Firm
Attorneys: A Feminist Perspective, 12 Women's Rts. L. Rep. 22 (1990). The survey
was conducted by West Publishing and the National Law Journal. Id.
Cynthia Grant Bowman & Mary Beth Lipp, Legal Limbo of the Student Intern: The
Responsibility of Colleges and Universities to Protect Student Interns Against
Sexual Harassment, 23 Harv. Women's L.J. 95 (2000).
Id. at 104, & n.26. The other highly vulnerable women are women of color,
students in small departments or colleges, and economically disadvantaged
Id. at 37-38. Harrington v. Louisiana State Board of Elementary and Secondary
Education, 714 So. 2d 845 (La. App. Ct. 1998), illustrates the most severe
potential danger in placing students under the supervision of instructors in the
field. In that case, the director of a community college culinary program, who
performed half his work in the field, raped his twenty-year-old teaching
assistant at the end of a working evening in which she had assisted him with a
wine tasting and joined him in meeting restaurant owners and chefs. Id. at
758 So. 2d 86 (Fla. 2000).
See supra note 6 and accompanying text.
See supra notes 5-6 and accompanying text.
See 1 Dan B. Dobbs, The Law of Torts 269 (2000).
See Robert D. Bickel & Peter F. Lake, The Rights and Responsibilities of the
Modern University: Who Assumes the Risks of College Life? 10-11, 67 (1999). This
book is a must-read for anyone interested in how courts have approached the duty
question when students sue their colleges and universities.
See id. at 67, 76.
Id.; 1 Dobbs, supra note 59, at 270.
Bickel & Lake, supra note 61, at 96.
Id. at 67, 96.
Id. at 67, 90.
Peter F. Lake, The Rise of Duty and the Fall of In Loco Parentis and Other
Protective Tort Doctrines in Higher Education, 64 Mo. L. Rev. 1, 1-9 (1999).
Although there never was a university immunity, a de facto immunity arose by
courts' analogizing universities to other groups such as parents, charities,
government, and social hosts, which did enjoy substantial immunities. Id. at 4.
A particularly strong shield for institutions of higher education was in loco
parentis. Parents sent their "children" off to college, and the colleges and
universities stepped into the parents' almost complete tort immunity. Their in
loco parentis role shielded colleges and universities from student claims based
on regulations or discipline. Id. at 4-6; see also Bickel & Lake, supra note 61,
at 23-25, 29.
See Bickel & Lake, supra note 61, at 17-18.
Lake, supra note 68, at 3. The first such decision was Dixon v. Alabama, 294
F.2d 150 (5th Cir. 1961), in which black students were perfunctorily dismissed
from a public university on vague terms but presumably because they participated
in civil rights demonstrations. The Fifth Circuit found that the students were
constitutional adults with basic constitutional rights of fair play and process,
which the college could not deny. Id. at 158159; see also Bickel & Lake, supra
note 61, at 39-43.
Bickel & Lake, supra note 61, at 29-30, 42.
Lake, supra note 68, at 11.
1 Dobbs, supra note 59, at 269-70.
See id. at 582.
Bickel & Lake, supra note 61, at 71; 1 Dobbs, supra note 59, at 578.
1 Dobbs, supra note 59, at 578-79; Clarence Morris & C. Robert Morris, Jr.,
Morris on Torts 126-142 (2d ed. 1980).
Bickel & Lake, supra note 61, at 76-78.
2 Dobbs, supra note 59, at 853, 855-56. When a driver fails to stop at a stop
sign and hits a jogger, failing to brake is not a pure failure to act. The
driver acts by driving--the act of driving is the potential source of
danger--and the driver must engage in that act with care. But if the driver had
been sitting at a stop sign and had seen another car backing out of a driveway
into the path of an oncoming jogger, he would have had no obligation to try to
prevent the other car from hitting the jogger. His own driving did not present a
danger to the jogger. Someone else's driving did. This driver is guilty only of
nonfeasance, a failure to take affirmative action that might have helped the
plaintiff, and the law does not impose affirmative duties to act, absent a
special relationship or an assumption of the duty. A suit against this driver
would fail for a lack of duty.
According to Restatement (Second) of Torts § 314 (1965), "the fact that the
actor realizes or should realize that action on his part is necessary for
another's aid or protection does not of itself impose upon him a duty to take
such action." The origin of this rule lies in the early common law distinction
between "misfeasance" and "nonfeasance." Id. § 314 cmt. c.
2 Dobbs, supra note 59, at 853; See Restatement (Second) of Torts § § 314, 314A,
315, 323. There are other exceptions to the no affirmative duty rules, see
generally Restatement (Second) of Torts § § 314-328 (setting forth the duties of
affirmative action), but these are the most relevant to the question at hand.
See Dobbs, supra note 59, at 853-54, 874-75; Restatement (Second) of Torts § §
314, 315; Richard A. Epstein, Torts § § 11.2, 11.5 (1999).
Restatement (Second) of Torts § 314(A).
Id. § 314(A) caveat.
See infra notes 127 and 147 and accompanying text. For example, if the jogger in
note 79 supra had been a high school student on a cross-country team, and the
defendant driver was his coach observing a practice run, then, where it is
recognized, the special relationship between high school student and teacher
would impose a duty. See 2 Dobbs, supra note 59, at 858; see also Dailey v. L.A.
Unified Sch. Dist., 470 P.2d 360, 363-64 (Cal. 1970). For a case declining to
hold even the junior high or high school relationship special, see Brum v. Town
of Dartmouth, 704 N.E. 2d 1147 (Mass. 1998). Case law has also expanded the list
to include spouses, parents and children, and employers and employees. See 2
Dobbs, supra note 59, at 876.
See infra notes 127-130, 148, and 172-73 and accompanying text.
W. Page Keeton et al., Prosser and Keeton on Torts 374 (1984).
2 Dobbs, supra note 59, at 854-55. This can also be thought of as a way of
making the relationship special. Id. at 860; see also Morris & Morris, supra
note 77, at 128, 131. If the driver in note 79 supra had told the jogger that he
would follow along in his car to alert him to hazards by honking but then became
absorbed in a cell phone conversation and did not watch out for hazards, a court
might find that by making the promise, getting in his car, and following along,
the driver had assumed a duty of care to the jogger.
Restatement (Second) of Torts § 323 (1965).
Dobbs, supra note 59, at 861.
Restatement (Second) of Torts § 323 caveat & cmt. d. In the early development of
tort law, mere failure to perform a promise, contrasted with actually entering
into performance and performing carelessly, was regarded as nonfeasance, and
action lay upon the contract and not tort principles. Id § 323 cmt. d.
Id. cmt. d.
2 Dobbs, supra note 59, at 872.
Id. at 861-62. Suppose the driver in note 79 supra told the jogger that he would
drive ahead of him to shield him from oncoming traffic and did so, but the
jogger was injured by a branch that fell from a tree. If the jogger sued the
driver, contending that he had assumed a duty to protect him, the driver could
successfully argue that falling tree limbs were outside the scope of the duty
that he had assumed.
1 id. at 582.
Bickel & Lake, supra note 61, at 202; 1 Dobbs, supra note 59, at 582; see also
Doe v. Johnson, 817 F. Supp. 1382 (W.D. Mich. 1993); Tarasoff v. Regents of
Univ. of Cal., 551 P.2d 334 (Cal. 1976); Rowland v. Christian, 443 P.2d 561
See supra notes 68-73 and accompanying text.
Bickel & Lake, supra note 61, at 49.
Id. at 50; see infra notes 157-60, 173 and accompanying text.
Bickel & Lake, supra note 61, at 49. Special relationships overcome this general
rule rejecting affirmative duties. Restatement (Second) of Torts § § 314A, 315
(1965); see infra notes 121, 127-35, 146, 169-70 and accompanying text.
See Restatement (Second) of Torts § 314A caveat; Bickel & Lake, supra note 61,
at 78; infra text accompanying notes 127-35, 150-52, 169-73.
Bickel & Lake, supra note 61, at 78; see infra notes 122-26, 157-58, 172 and
Bickel & Lake, supra note 61, at 78; see infra text accompanying notes 122-24,
129, 172-76, 189.
Bickel & Lake, supra note 61, at 78; see infra text accompanying notes 121-35,
See infra notes 127-30 and accompanying text.
See infra notes 122-24, 157-58, 169-76 and accompanying text.
612 F.2d 135 (3rd Cir. 1979).
Bickel & Lake, supra note 61, at 57.
Bradshaw, 612 F.2d at 137.
Bradshaw v. Rawlings, 464 F. Supp. 175, 180-81 (E.D. Pa. 1979), aff'd in part
and rev'd in part by 612 F.2d 135.
Id. at 181.
Bradshaw, 612 F.2d at 137-38.
Id. at 138-40.
Id. at 138, 142.
Id. at 141.
Id. at 139.
Id. at 139-40.
Id. at 138. Indeed, although this may be reading too much into imprecise
writing, the Third Circuit also broadly stated that the "major question"
presented was "whether a college may be subject to tort liability for injuries
sustained by one of its students involved in an automobile accident when the
driver of the car was a fellow student who had become intoxicated at a class
picnic," not narrowly as whether the college owed that student a duty. Id. at
136-37 (emphasis added).
Id. at 138, 142.
Id. at 140.
Id. at 138-39. In loco parentis, however, was never the source of a duty of care
owed to students. It was a doctrine that allowed colleges and universities to
step into the almost complete tort immunity enjoyed by parents and shielded them
from suits based on regulation and discipline. Theodore Stamatakos, Note, The
Doctrine of In Loco Parentis, Tort Liability and the StudentCollege
Relationship, 65 Ind. L.J. 471, 482-83 (1990) cited with approval in Lake, supra
note 68, at 5.
Bradshaw, 612 F.2d at 140-41. The court found the record "not overly generous in
identifying the interests possessed by the student." Id. Apparently, the
student's interest in remaining free from serious personal injury was not a
Id. at 141.
Id. at 141.
Id. at 142.
Id. The court also explained that the Pennsylvania Supreme Court had rejected
social host liability for serving alcohol to visibly intoxicated guests and
predicted that it would be even less likely to find a special relationship
between the college and its students in this case. Id. at 141.
Bradshaw v. Rawlings, 464 F.Supp. 175, 180-81 (E.D. Pa. 1979), aff'd in part and
rev'd in part by 612 F.2d 135.
The duties to take positive action imposed by common law are generally duties
to act with reasonable care in order to give to others the aid or protection
which the performance of the duty would afford them. The words "reasonable care"
are here used to denote that the actor is required to do that which a reasonable
man would believe to be necessary to afford the aid or protection to which the
other is entitled, but no more.
Restatement (Second) of Torts, Topic 7, Scope Note (1965).
"Where the duty to rescue is required, it is agreed that it calls for nothing
more than reasonable care under the circumstances." Keeton et al., supra note
87, at 377. "In all such cases where the duty [to control third persons] does
exist, the obligation is not an absolute one to insure the plaintiff's safety,
but requires only that the defendant exercise reasonable care." Id. at 385. "The
defendant's relationship to the plaintiff has been recognized as a ground for
requiring the defendant to take affirmative acts of reasonable care in a
substantial body of cases." 2 Dobbs, supra note 59, at 875.
176 Cal. Rptr. 809 (Cal. Ct. App. 1981).
Id. at 811.
Id. at 812.
Id. at 813 (quoting Dailey v. L.A. Unified Sch. Dist., 470 P.2d 360, 364 (Cal.
Id. at 815.
Id. at 818.
Id. at 814.
Id. at 815.
Id. at 816; see supra notes 96-97 and accompanying text.
Baldwin, 176 Cal. Rptr. at 816.
Id. at 815-16.
Id. at 816.
Id. at 817.
Id. at 816.
Id. at 817.
Id. at 817-18.
Id. at 818.
Id. at 819.
726 P.2d 413 (Utah 1986).
Id. at 414.
Id. at 415.
Id. at 415-16.
Id. Beach's counsel had conceded at oral argument that the student-teacher
relationship was not enough to create a duty, and the court was unconvinced that
a prior incident on a field trip made Beach sufficiently different from other
students to impose a duty of care for her based on especial vulnerability. Id.
Id. at 417.
Id. at 418.
Id. at 419 (internal citations omitted).
Id. at 418.
514 N.E.2d 552 (Ill. App. Ct. 1987).
Id. at 554.
Id. at 556-57.
Id. at 560-61.
511 N.E.2d 1128 (N.Y. 1987). This is just one example of cases that did not
impose a duty of care in the postimmunity era without turning to the Third
Circuit's opinion in Bradshaw for guidance. See, e.g., Donnell v. Cal. W. Sch.
of Law, 246 Cal. Rptr. 199 (Cal. Ct. App. 1988); Univ. of Denver v. Whitlock,
744 P.2d 54 (Colo. 1987).
Eiseman, 511 N.E.2d at 1130-32.
Id. at 1132.
Id. at 1136.
See, e.g., Ochoa v. Cal. State Univ., 85 Cal. Rptr. 2d 768, 773 (Cal. Ct. App.
1999); Niles v. Bd. of Regents, 473 S.E.2d 173, 175 (Ga. Ct. App. 1996);
Robertson v. State ex rel Dep't of Planning & Control, 747 So. 2d. 1276, 1280,
1282 (La. Ct. App. 2000).
This descriptive label was coined by Professors Bickel and Lake. See Bickel &
Lake, supra note 61, at 49.
Id. at 133-35.
Id. at 92-98; see infra notes 200-16 and accompanying text.
449 N.E.2d 331 (Mass. 1983).
Id. at 333-35.
Id. at 335.
Id. at 335-36 (internal citations omitted).
Id. at 336.
Id. at 336; see supra notes 88-95 and accompanying text.
Mullins, 449 N.E.2d at 336.
Id. at 337 n.11.
Id. at 336-37.
Id. at 337.
Bickel & Lake, supra note 61, at 12-13.
Peter F. Lake, The Special Relationship(s) Between a College and a Student: Law
and Policy Ramifications for the Post In Loco Parentis College, 37 Idaho L. Rev.
531, 535 (2001).
See Bickel & Lake, supra note 61, at 109-24. A good example of this line of
cases is Nero v. Kansas State University, 861 P.2d 768 (Kan. 1993). Shana Nero
was raped in the lounge of her co-ed dormitory by another student resident; the
university had assigned him to live there although it knew he had been accused
of raping another student. Id. at 771-72. Although the court held that the
university-student relationship was not special in itself and did not create a
duty to protect students from other students or third parties, the court found
that a special universitystudent relationship was not the only possible source
of a university duty. Id. at 778. In this case, the university acted as Nero's
landlord and owed her the same duty of care for her protection that a private
landowner owed its tenants. Id. at 780. According to the court, if criminal
conduct is reasonably foreseeable and within the university's control, the
university has a duty of reasonable care to protect students against it. Id.
Here, the university knew of the alleged prior rape, and when the accused rapist
enrolled in summer school, the university had the option to refuse to rent dorm
space to him. Id. By allowing him to live in the dorm, the university gave the
plaintiff a false sense of security. Id. She saw him as a fellow student and
stayed alone with him, rather than leaving as she likely would have had he been
a stranger. Id.
See Bickel & Lake, supra note 61, at 179-81.
Lake, supra note 68, at 12.
Mintz v. State, 362 N.Y.S.2d 619 (N.Y. App. Div. 1975); see Lake, supra note 68,
Bickel & Lake, supra note 61, at 129.
Id. at 150-52; see Delbridge v. Maricopa County Cmty. Coll. Dist., 893 P.2d 55
(Ariz Ct. App. 1995); Regents of the Univ. of Cal. v. Superior Court, 48 Cal.
Rptr. 2d 922 (Cal. Ct. App. 1996); Fu v. State, 643 N.W.2d 659 (Neb. 2002).
Duties in curricular activities are not new, although older lawsuits regarding
curricular duties are rare. Bickel & Lake, supra note 61, at 151; see, e.g.,
Brigham Young Univ. v. Lillywhite, 118 F.2d 836 (10th Cir. 1941); Grover v. San
Mateo Junior Coll. Dist., 303 P.2d 602 (Cal. Ct. App. 1956).
Bickel & Lake, supra note 61, at 151.
Lake, supra note 68, at 13.
594 A.2d 506 (Del. 1991).
Bickel & Lake, supra note 61, at 128-30.
Furek, 594 A.2d at 518.
Id. at 510-11.
Id. at 511.
Id. at 516.
Id. at 517.
Id. at 516.
Id. at 517.
Id. at 518.
Id. at 158 n.11.
Id. at 518.
Id. at 518-19.
449 N.E.2d 331 (Mass. 1983); see supra Part III.D.1.
Furek, 594 A.2d at 519-20.
Id. at 520; see supra notes 88-95 and accompanying text.
Furek, 594 A.2d at 519-20 (quoting Mullins, 449 N.E.2d at 336); see supra
notes 200-16 and accompanying text.
Furek, 594 A.2d at 519-20.
Id. at 521.
Id. (citing Restatement (Second) of Torts § 344 cmt. f. (1965)).
Id. at 521-22.
Id. at 522.
Id.; see supra notes 83-87 and accompanying text.
Furek, 594 A.2d at 522.
987 P.2d 300 (Idaho 1999).
Id. at 304-05.
Id. at 305.
Id. at 311.
Id. at 312.
Id. at 311-12.
Id. at 312 (quoting Bradshaw v. Rawlings, 612 F.2d 135, 138 (3rd Cir. 1979)).
Id. at 310.
Id. at 312.
Id. (quoting Featherstone v. Allstate Ins. Co., 875 P.2d 937, 940 (Idaho 1994)).
Id. Similarly, the court did not find a special relationship between Coghlan and
her sorority but did find a material issue of fact as to whether the sorority
"voluntarily assumed a duty of reasonable care to supervise and protect Coghlan
until she was out of danger of harm due to her intoxication." Id. at 314. The
sorority invited her to attend the fraternity parties, knew or should have known
that underage pledges would be served alcohol, and appointed a "guardian angel"
sorority member to accompany Coghlan. Id. at 305. In addition, the sorority
returned the intoxicated Coghlan to the sorority house and left her unattended.
Id. at 314.
635 N.E.2d 1172 (Mass. 1994).
Id. at 1173.
Id. at 1174-75.
Id. at 1173 (internal quotations omitted). The agreement also stated that the
student must be covered by workers' compensation insurance and that the employer
had to indicate that the student would be covered. Id.
449 N.E.2d 331 (Mass. 1983); see supra notes 200-16 and accompanying text.
Judson, 635 N.E.2d at 1174.
Id. at 1175.
Id. at 1174-75.
No. 934253, 1994 WL 879600 (Mass. Super. Ct. Oct. 12, 1994). This is only a
trial court opinion, but it was cited by the Florida Supreme Court in Nova
Southeastern University, Inc. v. Gross, 758 So. 2d 86, 90 (Fla. 2000), and
demonstrates how the duty issue may play out in the front lines.
Silvers, 1994 WL 87600, at *1.
Id. at *2.
Id. When the student, after her dismissal, reported the situation to the
placement office, the placement director took no action but said, "Too bad he
wasn't younger and better looking." Id.
Id. at *3.
Id. at *4.
714 So. 2d 845 (La. Ct. App. 1998).
Id. at 851.
Id. at 848.
Id. at 848, 850.
Id. at 850.
Id. at 848, 850.
Id. at 848.
Id. at 849.
Id. at 850.
Id. (citing Smith v. Orkin Exterminating Co., 540 So. 2d 363 (La. Ct. App.
Id. (quoting Roberts v. Benoit, 605 So. 2d 1032, 1046 (La. 1991)).
Id. at 851.
Id. Actually, freedom from moral turpitude should be essential.
758 So. 2d 86 (Fla. 2000).
Id. at 87-88. Students chose six internships from a list of sites approved by
the university, and the university made the final assignments from the students'
Id. at 88.
Id. at 87-88.
Id. at 88.
Id. at 89 (quoting Rupp v. Bryant, 417 So. 2d 658, 666 (Fla. 1982)).
Id. at 88.
Id. at 89.
The court was not explicit that it found this to be a case of misfeasance rather
than nonfeasance overcome by a special relationship or voluntary assumption, and
it blurred the line between voluntary assumption of duty and misfeasance by
quoting at length the voluntary assumption of a duty case, Union Park Memorial
Chapel v. Hutt, 670 So. 2d. 64, 66-67 (Fla. 1966), while also relying upon a
misfeasance case, Pate v. Threlkel, 661 So. 2d 278, 280 (Fla. 1995).
Nonetheless, this does seem to be a decision based on misfeasance, as the court
did not consider whether the elements of voluntary assumption were met beyond
that of an undertaking. See supra notes 88-95 and accompanying text.
Nova Southeastern, 758 So. 2d at 89. (quoting Silvers v. Associated Tech'l
Inst., No. 934235, 1994 WL 879600, at *3 (Mass. Super. Ct. Oct. 12, 1994)); see
supra notes 289-304 and accompanying text.
Nova Southeastern, 758 So. 2d at 89.
Id. at 88.
See supra note 196.
See supra notes 127-35, 150 and accompanying text.
See supra notes 207, 240-41 and accompanying text.
See supra notes 174, 189 and accompanying text.
See supra notes 17-20 and accompanying text.
See supra notes 163, 174 and accompanying text.
594 A.2d 506 (Del. 1991); see supra note 240 and accompanying text.
See supra note 125 and accompanying text.
See supra notes 131-35 and accompanying text.
See supra notes 108-76 and accompanying text.
See supra notes 143-48, 182-89 and accompanying text.
See ABA Standards for Approval of Law Schools § 305(f)(3) (2002).
Judson v. Essex Agric. & Tech'l Inst., 635 N.E.2d 1172 (Mass. 1994); see supra
notes 275-288 and accompanying text. The case in which the Massachusetts Supreme
Court questioned the Bradshaw logic was Mullins v. Pine Manor College, 449
N.E.2d 331 (Mass. 1983), which is discussed supra at notes 200216 and
Bickel & Lake, supra note 61, at 105.
See supra notes 127-30, 148, 172-73 and accompanying text; see also Davidson v.
Univ. of N.C., 543 S.E.2d 920, 928 (N.C. Ct. App. 2001), cert. denied, 550
S.E.2d 771 (N.C. 2001).
Donnell v. Cal. W. Sch. of Law, 246 Cal. Rptr. 199, 20001 (Cal. Ct. App. 1988).
See supra notes 83-87 and accompanying text. If the case involved a law school
that made the field placement a graduation requirement and tightly controlled
what sites were available to the student, in part by limiting them to a very
short list of sites that the school maintained relationships with, the student
might argue that she was dependent upon the school for safety in, at least, site
selection. The externship relationship might be found special and to impose care
limited to the issue of choosing sites and assigning students to them. The
strongly held belief that the college student-to-college relationship is not
special would probably keep a court from making such an analysis, however. But
see, however, Susan Brown Foster & Anita M. Moorman, Gross v. Family Services
Agency, Inc.: The Internship as a Special Relationship in Creating Negligence
Liability, 11 J. Legal Aspects Sport 245, 251 (2001), suggesting that
internships may be special relationships.
See supra note 83 and accompanying text.
See supra notes 77-79 and accompanying text.
Keeton, et al., supra note 87, at 373.
It is important to note, however, that foreseeability of injury plus misfeasance
will not always add up to duty. The court may find, even where misfeasance is
convincingly argued, that public policy does not favor a duty in the particular
Harrington v. La. State Bd. of Elementary and Secondary Educ., 714 So. 2d 845
(La. Ct. App. 1998); see supra notes 30521 and accompanying text.
Nova Southeastern Univ., Inc. v. Gross, 758 So. 2d. 86, 89-90 (Fla. 2000).
Id. at 90.
Id. (citing Silvers v. Associated Tech'l Inst., No. 934253, 1994 WL 879600
(Mass. Super Ct. Oct. 12, 1994)).
See supra note 297 and accompanying text.
See supra note 5 and accompanying text.
See supra note 8.
Part of the duty to select the site with care may well be a duty to select the
field supervisor with care. See supra text accompanying note 360.
Nova Southeastern, 758 So. 2d at 87-88.
Id. at 88.
See Seibel & Morton, supra note 4, at 423-26.
Nova Southeastern, 758 So. 2d at 90. This may be because Gross herself premised
the case on negligence in making the practicum assignment and not on inadequate
Id. (citing Silvers v. Associated Tech'l Inst., No. 934253, 1994 WL 879600, at
*3 (Mass. Super. Ct. Oct. 12, 1994)).
Furek v. Univ. of Del., 594 A.2d 506, 517, 520-22 (Del. 1991).
Id. at 522.
See supra notes 12-28 and accompanying text.
See supra notes 128-35, 150 and accompanying text.
See supra Part III.C.
See, for example, the discussion of Coghlan v. Beta Theta Pi Fraternity, 987
P.2d 300 (Idaho 1999), beginning supra at text accompanying note 260. For a
discussion of the current state of the law regarding the assumption of duties by
colleges and universities, see Bickel & Lake, supra note 61, at 133-50.
Bickel & Lake, supra note 61, at 156-57.
See Coghlan, 987 P.2d 300. This case is discussed supra in the text accompanying
See supra notes 88-95 and accompanying text.
Restatement (Second) of Torts § 323 (1965).
See supra notes 209-15 and accompanying text.
See supra notes 246-47 and accompanying text.
See supra notes 272-73 and accompanying text.
Restatement (Second) of Torts § 323. See, for example, Tollenaar v. Chino Valley
School District, 945 P.2d 1310, 1311-12 (Ariz. App. 1997), in which the court
found that, by imposing a closed-campus policy, the school district had not
voluntarily undertaken to protect students from injuring themselves by leaving
campus during school hours. The parents of high school students who violated the
policy and were killed in an automobile accident presented no evidence that by
undertaking the closed-campus policy the school recognized, or should have
recognized, that it was necessary for the students' protection.
Even if a safety promise is made, there is some question as to whether a mere
promise without starting performance can be an undertaking. Courts, however,
tend to try to find ways to enforce safety promises. See supra notes 91-93 and
See supra notes 285-88 and accompanying text.
ABA Standards for Approval of Law Schools § 305(f)(3) (2002).
Restatement (Second) of Torts § 323.
See Restatement (Second) of Torts § 323; supra note 211 and accompanying text.
See supra note 211 and accompanying text.
See supra notes 232-34 and accompanying text.
See supra notes 88-89 and accompanying text.
See supra note 95 and accompanying text.
See supra note 95 and accompanying text. When warnings are voluntarily provided,
the only duty assumed is to warn with care. This is because, when a defendant
has undertaken a specific task, the defendant is required to perform only that
specific task with care. See, e.g., Davis v. Westwood Group, 652 N.E.2d 567, 571
(Mass. 1995) (finding that, by hiring an officer to direct pedestrians across a
state highway from the parking lot to the defendant's greyhound track, the
defendant did not undertake the broader duty of providing safe passage across
the highway by means of a pedestrian bridge or traffic light); see also Hinson
v. Black, 572 S.E.2d 653, 655 (Ga. Ct. App. 2002) (finding that defendant did
not assume a duty to prevent injury to the decedent when he warned her not to go
onto the balcony while intoxicated), cert. denied, No. 503C0196, 2003 Ga. LEXIS
61 (Ga. Jan. 13, 2003). The duty to warn with care is not assumed unless the
warning increased the risk to the plaintiff or her harm was suffered in reliance
on the warning. Valance v. VIDoug, Inc., 50 P.3d 697, 703 (Wyo. 2002).
That, in itself, merits comment. Duty rules tell parties how to behave, but a
voluntary assumption of duty cannot be fully assessed until after an injury has
occurred and the opportunity for exercising care has passed. How then do the
voluntary assumption rules help guide behavior? They tell what kind of conduct
assumes a duty and how broad the scope of the assumed duty will be.
Bickel & Lake, supra note 61, at 133-35.
Id. at 181.
Id. at 182.
First, if students are consumers, then they should be entitled to get what they
want and pay for . . . . We have given them this, for example with grade
inflation. When universities have canceled beer privileges, students have rioted
violently: as consumers paying more money than ever, they feel entitled to get
what they pay for and be left alone. Students who view themselves as consumers
often assert the very radical and libertarian aspects of freedom which the
bystander cases described. In short, when applied to colleges, strict business
paradigms tend to polarize student conduct.
Id. at 184.
Id. at 184. Professors Bickel and Lake have stated,
Restoring community values -- shared responsibilities -- on campus can make
campuses safer and less violent places. Business rules work well to promote
safety at K-Mart, but young people on campus do not live at K-Mart or even spend
significant amounts of their lives there. . . . A consumer has little investment
in making a store safer for others; every student depends on other students for
safety on campus.
Id. at 185.
Id. at 184.
Id. at 179-80.
Let us make this perfectly clear:
Universities can owe duties to their students on and off campus irrespective of
whether there is a special relationship of any kind. Legal special relationships
only potentially enhance responsibility to include affirmative duties to
proactively prevent harm even when caused by third parties, non-negligent
forces, and/or students themselves. Special relations are not prerequisites to
duty, per se, but only prerequisites to certain kinds of duty to take
affirmative action. Custodial relations are only a subset of special
relationships. This is basic tort law.
Id. at 180.
For example, to use the example from Part III.C.3, supra, if an externship
advisor gave the student bad advice, why shouldn't that be analyzed as
misfeasance rather than as an affirmative duty problem that requires a voluntary
assumption of the risk analysis?
See supra note 334.
Bickel & Lake, supra note 61, at 193.
Id. at 195.
Id. at 202.
It must be noted at the outset, however, that no court has yet explicitly
adopted this model, as of a March 2003 Westlaw search. Bickel and Lake do
contend that many courts have implicitly applied this approach. Id. at 193. In
addition, one of their articles about the facilitator university is noted with
approval in a footnote to Nova Southeastern Univ., Inc. v. Gross, 758 So. 2d 86,
89 n.2 (Fla. 2000).
Bickel & Lake, supra note 61, at 192.
Id. at 193.
Id. at 195.
Id. at 203.
Nova Southeastern Univ., Inc. v. Gross, 758 So. 2d 86 (Fla. 2000).
Bickel & Lake, supra note 61, at 195-96.
Id. at 196.
Id. at 195-96.
Id. at 202.
Id. at 202.
Id. at 202, 204.
Id. at 203.
Foster & Moorman, supra note 355, at 260-61.
See supra note 397.
It would also be possible to ask the field supervisors to enter indemnity
agreements, but they might decline to accept externs on those terms.
Foster & Moorman, supra note 355, at 261.
Bickel & Lake, supra note 61, at 193.
In other words, instead of consulting with her and helping her make her own
choice, we withdrew the option, another avenue for the facilitator to make when
that is the appropriate balance of responsibilities.
See supra notes 21-23 and accompanying text.
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