By Adam Wolkoff, Assistant Director, Student Conduct Institute
On January 8-9, 2020, Student Conduct Institute staff were honored to participate in Navigating the Legal Terrain of Mental Health Issues on Campus, a conference of The State University of New York Office of General Counsel. Through a variety of panels, we discussed the law and best practices concerning how to address the needs of students with mental health concerns within the Title IX and conduct process. We will be sharing portions of that work in upcoming posts and modules.
In advance of that research, we are alerting members of a growing trend in several jurisdictions regarding the potential liability of colleges and universities for negligence under the “special relationship” theory. Depending on your jurisdiction, this liability may exist alongside the more familiar framework of Title IX responsibility to prevent and respond to sexual misconduct.
Courts in several states have begun recognizing negligence claims against colleges and universities based on the institution’s alleged failure to prevent foreseeable harm to the student in spaces and programs within the institution’s control. While tort law does not usually recognize a duty to protect others from the conduct of third-parties, these courts reason that a “special relationship” exists between the student and the institution obliging the institution to exercise a duty of care toward the student to prevent and respond to known risks.
Some of this recent case law arises from the mental health context, wherein students argue that the institution had a duty to prevent self-harm to a student with known mental health issues, or foreseeable harms to other students from an attacker suffering from mental illness. Other cases stem from institutional responses to sexual and interpersonal violence. Litigants (typically, reporting individuals) argue that, alongside their Title IX obligations, institutions have a common law duty to prevent and respond to sexual misconduct based on their “special relationship” with students.
But this trend has not yet reached New York. State courts have declined to recognize the existence of a “special relationship” that would apply, as a general matter, to institutions of higher education. Eiseman v. State, 70 N.Y.2d 175, 190 (1987). They do permit actions against public colleges and universities for failing to maintain the safety of school premises within their “proprietary” capacity as a landlord. Miller v. State, 62 N.Y.2d 506, 513 (1984).
Attempting to strike a balance between the heavy-handed role of the institution under the doctrine of in loco parentis and the hands-off “bystander” approach that rose to prominence in the 1970s, courts have begun to recognize a limited “special relationship” between students and the institution. Regents of Univ. of California v. Superior Court, 413 P.3d 656, 669 (Cal. 2018).
The special relationship, according to the Supreme Court of California’s leading opinion on this issue, arises from “the unique features of the college environment.” Regents of Univ. of California, supra, 413 P.3d at 660. “Students are comparatively vulnerable and dependent on their colleges for a safe environment. Colleges have a superior ability to provide that safety with respect to activities they sponsor or facilities they control.” Id., at 668. The relationship is not boundless, moreover, but limited by the student’s enrollment. Id. And it only applies to activities “that are tied to the school’s curriculum,” such as campus classrooms, but excludes events where the institution exercises “no significant degree of control.” Id., at 669.
In California, to prove that a college or university breached its special duty, the plaintiff must establish three elements. First, that the injury occurred while the student was engaged in activities that were part of the school’s curriculum; second, that the institution was aware or should have been aware that the perpetrator was a foreseeable threat of violence to other students; and, third, that the institution failed to act with reasonable care in responding to this threat. Regents of Univ. of California v. Superior Court, 29 Cal. App. 5th 890, 902 (Cal. Ct. App. 2018), reh'g denied (Dec. 21, 2018), review denied (Mar. 13, 2019). The standard of care is not elevated to the level of a mental health care professional, but governed by the “ordinary negligence standard of care,” meaning the degree of care applied by a reasonable person in the exercise of ordinarily prudent behavior. Id., at 904.
Under this limited duty of care, as applied in Texas, “[f]oreseeability is the dominant—but not the controlling—consideration, because there must be sufficient evidence indicating that the defendant knew or should have known that harm would eventually befall a victim.” Hernandez v. Baylor Univ., 274 F. Supp. 3d 602, 619 (W.D. Tex. 2017) (internal quotation marks omitted). A negligence claim is only likely to succeed if the assault occurs in a space within the institution’s control and the assault is reasonably foreseeable. E.g., Nero v. Kansas State Univ., 253 Kan. 567, 584, 861 P.2d 768, 780 (Kan. 1993) (analogizing the university’s duty of care to students to the duty a private landowner owes its tenants).
Courts have extended (or considered extending) this theory to negligence claims brought against institutions of higher education in several states, including California, Delaware, Florida, Kansas, Maryland, Massachusetts, North Carolina, Rhode Island, and Texas. Regents of Univ. of California v. Superior Court, 413 P.3d 656, 669 (Cal. 2018); Furek v. Univ. of Delaware, 594 A.2d 506, 522 (Del. 1991); Nova Southeastern University v. Gross, 758 So.2d 86, 89 (Fla. 2000); Nero v. Kansas State Univ., 253 Kan. 567, 584 (Kan. 1993); Doe v. Salisbury Univ., 123 F. Supp. 3d 748, 763 (D. Md. 2015) (in dictum); Mullins v. Pine Manor Coll., 389 Mass. 47, 54–55 (Mass. 1983); Doe v. Lenoir-Rhyne Univ., No. 5:18-CV-00032-DSC, 2018 WL 4101520, at *4 (W.D.N.C. Aug. 28, 2018); Lozano v. Baylor Univ., No. 6:16-CV-403-RP, 2019 WL 4742302, at *16 (W.D. Tex. Sept. 27, 2019).
Still, other courts hold that any such duty would have to arise from the code of conduct itself, and be enforced through a breach of contract action. E.g., A.M. v. Miami Univ., 2017-Ohio-8586, ¶ 49, 88 N.E.3d 1013, 1027; Doe v. Univ. of Dayton, No. 18-3339, 2019 WL 1224606, at *10 (6th Cir. Mar. 15, 2019) (applying Ohio law).
The California Court of Appeal held that a public university may have breached its special duty in its response to a student’s “continuous, erratic behavior” which a reasonable person could believe posed a foreseeable risk of violence to other students. Regents of Univ. of California v. Superior Court, 29 Cal. App. 5th 890, 912 (Cal. Ct. App. 2018), reh'g denied (Dec. 21, 2018), review denied (Mar. 13, 2019). Among the facts alleged, the student had “auditory hallucinations and paranoid delusions” about harassment by other students, including hallucinations that fellow students were going to shoot him. Id. The student was also expelled from campus housing after repeatedly pushing another students during a hallucinatory episode. Id., at 913. He also warned campus officials that if this perceived harassment did not stop, “he would be forced to take matters into his own hands.” Id. Not only was the institution on notice, but its response may have been unreasonable, as a jury could find that the institution failed to coordinate its response and should have referred the student to the Violence Prevention Team for a threat assessment. Id.
While the California decisions have focused on harm to others, the Supreme Judicial Court of Massachusetts has recognized that a university has a duty to take reasonable steps to protect students from self-harm, where it “has actual knowledge of a student's suicide attempt that occurred while enrolled at the university or recently before matriculation, or of a student's stated plans or intentions to commit suicide.” Dzung Duy Nguyen v. Massachusetts Inst. of Tech., 479 Mass. 436, 453 (2018). This is not “a generalized duty to prevent suicide” but rests on foreseeability. Id., at 455. Where self-harm is foreseeable, a reasonable response would include initiating an existing “suicide prevention protocol” or contacting appropriate officials to assist the student in obtaining clinical care from medical professionals. Id., at 456. If the student refuses care, then the institution must notify the student’s emergency contact or, under exigent circumstances, contact fire, police, or emergency medical personnel. Id., at 456-57.
In contrast to these approaches, the Court of Appeals of Michigan held that a college and its instructor could not be held liable on negligence claims where their alleged failure to monitor a student’s mental health on a study abroad trip to Italy resulted in the student’s killing of a stranger while in a psychotic state and subsequent incarceration and hospitalization. Hindenach v. Olivet Coll., No. 340540, 2019 WL 1265074, at *3 (Mich. Ct. App. Mar. 19, 2019). The Court of Appeals declined to apply the “special relationship” framework to these facts, instead applying general tort principles regarding foreseeability and the assumption of a duty not otherwise legally obligated to perform. Id. The college’s general knowledge that the student suffered from depression and anxiety, and was medicated for those conditions, would not have made any of those outcomes reasonably foreseeable. Id. The instructor’s intervention into a fight among the student and other individuals also could not have reasonably put the instructor on notice, or imputed responsibility upon him, to prevent the student from going to the streets and eventually killing someone. Id.
In Massachusetts, courts do not impose a duty on colleges and universities “to supervise the social activities of adult students” or to protect students from sexual assault at an off-campus fraternity party. Doe v. Emerson Coll., 153 F. Supp. 3d 506, 515 (D. Mass. 2015). While the institution owes a special duty to students who live on campus housing, its duty does not extend to protecting them when they choose to leave campus to attend a party unaffiliated with the institution. Id. See, also, Doe v. Brown Univ., 304 F. Supp. 3d 252, 261 (D.R.I. 2018) (no negligence claim against institution under Rhode Island law for supervision of fraternity chapter).
But reasonably foreseeable assaults occurring within campus housing may subject an institution to a negligence claim. Mullins v. Pine Manor Coll., 389 Mass. 47, 54–55 (Mass. 1983) (college has duty to provide security measures to prevent foreseeable sexual assaults by trespassers because of the “dangers inherent in being housed at a women’s college near a metropolitan area only a short distance from bus and train lines”).
Likewise, under North Carolina law, an institution may be liable for negligence where it has clear knowledge that a “serial sexual offender” is living in a campus residence hall and fails to act. Doe v. Lenoir-Rhyne Univ., No. 5:18-CV-00032-DSC, 2019 WL 2399745, at *2 (W.D.N.C. June 6, 2019) (denying motion for summary judgment on negligence claim). Although the Lenoir-Rhyne court had previously dismissed Title IX and breach of contract claims brought by a reporting individual alleging that her institution was deliberately indifferent in preventing and responding to an act of sexual assault, it sustained claims of negligence, negligent infliction of emotional distress, and gross negligence. Doe v. Lenoir-Rhyne Univ., No. 5:18-CV-00032-DSC, 2018 WL 4101520, at *4 (W.D.N.C. Aug. 28, 2018).
The Lenoir-Rhyne court identified several factors that a jury could find constituted negligence, whether through inadvertence or an intentional, willful act. Essentially, the court imputed a duty to the institution to provide safe student housing and notify students of any know dangers that could harm them. Doe v. Lenoir-Rhyne Univ., No. 5:18-CV-00032-DSC, 2018 WL 4101520, at *4 (W.D.N.C. Aug. 28, 2018). Although the institution knew that the respondent was a “serial sexual offender” who posed an “unreasonable risk of danger to other women” and that the respondent would continue to pose a risk to the reporting individual and other students, it failed to act, and the reporting individual was assaulted and suffered severe emotional distress. Id. This conduct could be considered negligent, but also could plausibly fall into the category of “gross negligence” because some of the allegations suggested a willful failure to act. Id. Not only did the institution fail to prevent a known risk, but it then completely failed to report the assault to law enforcement. Id.
Lenoir-Rhyne is a clear signal to institutions that they may face liability under negligence law for failing to prevent and respond to known risks. The stark allegations of that case, however, suggest that its impact may be limited. The court laid out a bare-bones fact pattern that gives little indication about how the institution actually responded to the “serial” misconduct of the respondent. The opinion does not indicate, for example, whether the institution brought conduct proceedings against the respondent after the prior sexual assaults, and does not explain why the institution allowed a respondent who “was implicated” in two sexual assaults to stay in campus housing. We are not aware of any institutions who, as a matter of practice, would allow a respondent found responsible for two incidents of sexual assault to remain an enrolled student, much less live in on-campus housing.
Another negligence case worth considering for its wider impact is Doe v. Rhode Island School of Design, No. CV 18-10-JJM-LDA, 2019 WL 6896660, at *6 (D.R.I. Dec. 18, 2019). There, a reporting individual was sexually assaulted in a hotel room that was her host-provided accommodation while participating in a study abroad program in Ireland. Id., at *2. While the host institution selected this housing, her home institution paid for the cost of the housing, the cost of this housing was included in the cost of the student’s registration, and officials from the home institution admitted that they were responsible for providing reasonably safe accommodations for students while studying abroad. Id., at *6-7. The danger to the student was reasonably foreseeable because of the institution’s general knowledge of the risk of sexual assault on study abroad programs, and its specific knowledge of a previous allegation of sexual assault in the Ireland program two years before, and the fact that the reporting individual’s room did not have a lock on the door. Id., at *7.
While courts in other jurisdictions have extended liability to colleges and universities for failing to prevent harm to students from themselves or others, New York courts have expressly declined to extend liability in this context. The exception arises when the institution provides housing to the student; in that case, the institution may be liable under premises liability standards applicable to New York landlords.
In Eiseman v. State of New York, the Court of Appeals declined to apply negligence liability against a public college on the basis of in loco parentis or a legal duty to shield students from the dangerous activity of other students. Eiseman v. State, 70 N.Y.2d 175, 190, 511 N.E.2d 1128 (1987). The court held that a public college could not be held liable for negligence to the estate of a student raped and murdered by a fellow student who had been released from prison and accepted into a special program for disadvantaged high school graduates. Id., at 180. The court expressly declined to adopt Restatement (Second) of Torts § 203 B (which would attach liability based on a college’s duty not to subject students to an unreasonable risk of harm from one known to pose such a risk) as a theory of liability, and more broadly pointed to the “profound social issues underlying this case”: an affirmative policing duty would brand the student as a former convict before the student ever appeared to be a danger to the campus, and leave colleges in the untenable position of predicting unforeseeable tragedies. Id., at 191. The court reasoned that “imposing liability on the College for failing to screen out or detect potential danger signals in [the perpetrator] would hold the college to a higher duty than society's experts in making such predictions,” such as the corrections and parole officers found not liable for the same incident. Id.
As a general matter, public colleges and universities in New York cannot be held liable in negligence when they exercise their “governmental function” of providing police protection; that duty is owed to the public at large, and not a particular individual. McEnaney v. State, 267 A.D.2d 748, 749 (N.Y. App. Div., 3d Dept. 1999).
But those institutions may be liable for negligence in their proprietary function of providing housing to students. Where a public college or university “acts in a proprietary capacity as a landlord, it is subject to the same principles of tort law as is a private landlord.” Miller v. State, 62 N.Y.2d 506, 511 (1984).
Thus, where a public university allegedly failed to lock the outer doors of its housing despite knowing of past intrusions, and that failure was a proximate cause of a rape, it could be held liable for negligence. Id., at 514. See, also, Nieswand v. Cornell Univ., 692 F. Supp. 1464, 1468 (N.D.N.Y. 1988). But no liability will arise where the institution was not on notice of prior criminal activity. Adams v. State, 210 A.D.2d 273, 274, 620 N.Y.S.2d 80 (1994).
While on-campus liability may be present, particularly for public institutions, colleges and universities are unlikely to be liable in negligence for harm occurring in off-campus settings that they exercise no control over. In a recent example, a private college could not, as a matter of law, be held liable in negligence for harm to students arising from a fire in off-campus housing, even where that housing was advertised on its website; the court held that adult students who choose to live off-campus and their private landlords were in the best position to assess the risk of unsafe housing. Fitzsimons v. Brennan, 169 A.D.3d 873, 875 (N.Y. App. Div., 2d Dept. 2019). Likewise, courts have declined to apply liability where students are injured in an unauthorized off-campus rugby game in violation of the university’s orders; no “special relationship” warranted the imposition of a duty to control this misconduct. Gilbert v. St. John's Univ., No. 94 CV 1534 (SJ), 1998 WL 19971, at *5 (E.D.N.Y. Jan. 20, 1998). See, also, Obiechina v. Colleges of the Seneca, 171 Misc. 2d 56, 60, 652 N.Y.S.2d 702 (Sup. Ct., Ontario Cty. 1996) (no assumption of duty or “special relationship” subjecting private college to liability where student is injured crossing street adjacent to campus).
District courts within the Second Circuit have recently begun considering claims by minor children against private boarding schools for liability in sexual misconduct cases grounded in the breach of a fiduciary duty. Roe v. Hotchkiss Sch., 385 F. Supp. 3d 165, 173 (D. Conn. 2019). In doing so, the courts have distinguished the care owed to minors from that owed to adult college students, and finding no corresponding duty in the higher education context. Id., citing Knelman v. Middlebury Coll., 570 F. App'x 66, 68 (2d Cir. 2014) (Vermont law does not recognize special relationship in the higher education setting for purposes of a breach of fiduciary duty claim).
In the past two years, appellate courts in California and Massachusetts have released groundbreaking decisions regarding a “special relationship” between students and institutions of higher education that expand negligence liability where the institution fails to reasonably respond to known dangers grounded in mental health crises. By contrast, other courts considering these issues have either declined to apply tort liability, or avoided finding a “special relationship” unique to the student-university context. Instead, they have rested liability on older common law frameworks, such as landlord-tenant law or the protections offered to business invitees.
It is possible that New York courts could rethink their approach and adopt the “special relationship” theory applied in other states. But absent this change, it is unlikely that New York courts would extend liability under these older frameworks to the mental health context in a manner that would subject a New York institution to liability for failing to prevent self-harm to a student. That result would not flow from the limited duty owed by a landlord to their tenants.