Cocktails on campus: are libations a liability?

• Author: Bendlin, Susan S.
• Position: I. Introduction through III. Special Considerations That Limit Damages, p. 67-98

1. INTRODUCTION

   An estimated 1,825 college students die each year from alcohol-related, unintentional injuries. (2) Roughly 599,000 students between the ages of eighteen and twenty-four are injured every year while under the influence of alcohol. (3) More than 100,000 students have reported that they were too intoxicated to know whether they had consented to having sex, and an estimated 97,000 students annually are victims of alcohol-related sexual assault or date rape. (4) College students report a higher binge-drinking rate and are involved in more drunk driving incidents than eighteen to twenty-four year olds who are not in college. (5)

   Tales of intoxicated college students' wild and often violent behavior have made the national news. For example, at a fraternity party at the University of Central Florida in July of 2013, police arrived to find one student lying in a puddle of his own vomit and several other students passed out in the yard. (6) Another situation involved freshmen cheerleaders at Towson University who were told last year to "funnel a beer or take a shot of alcohol" before donning adult diapers over their shorts and performing a dance for other cheerleaders. (7) At Occidental College, a freshman was raped twice by her friend after both had been drinking. (8) A group of students at the University of Virginia gathered to take shots of alcohol at 7:00 a.m. before their graduation ceremony. (9) These and similar scenarios are not surprising to college administrators, who report that alcohol consumption is a factor in many student problems, (10) including mental health issues, poor academic performance, fights, rape, alcohol poisoning, traffic accidents, and other serious injuries. (11)

   Alcohol abuse on college campuses is not a recent development unique to the current generation of college students. College freshmen have been surveyed annually since 1966, and the data shows that the number of students who report drinking "frequently" or "occasionally" has in fact slightly declined in recent years. (12) In 1966, 53.5% of all freshmen reported drinking beer frequently or occasionally, and 44.4% reported drinking wine. (13) Beer drinking (14) increased during the late 1970s and early 1980s; specifically, in 1978, 73.2% of all freshmen said they drank beer, and in 1982, 75.1% reported having drunk beer. (15) That figure dropped to 48.3% in 2000 and to 35.0% with the entering class of 2013 (the most recent data). (16) The students who drink to excess attract attention and cause other students to perceive that heavy drinking is fairly common on campus, but statistics show that a relatively small percentage of students are binge drinkers. (17) Nonetheless, excessive drinking by those students does lead to significant problems, as demonstrated by the 67% increase in hospitalizations for eighteen to twenty-four-year-olds due to alcohol overdoses from 1999 to 2008. (18)

   Some of the "heaviest drinking was back in the 1970s and '80s, when parents of today's students would have been enrolled" in college. (19) The legal drinking age in most states during that time was eighteen, such that many college students could legally buy and consume alcohol. Eighteen became the age of majority in 1971 when the twenty-sixth amendment to the United States Constitution was adopted, granting eighteen-year-olds the right to vote. (20) One court commented that with the change in the age of majority to eighteen, "[c]ollege students today are no longer minors" and they have "discrete rights not held by college students from decades past." (21) Students asserted their independence in the late 1960s and early 1970s in campus demonstrations described as "a direct attack by the students on rigid controls by the colleges" as well as "an all-pervasive affirmative demand for more student rights." (22) Through these demonstrations, students succeeded in attaining expanded rights to privacy in college life.

   Following this change in the age of majority, courts pointed out that college students are independent adults, and therefore, universities are not custodians of their students and do not owe them a duty of supervision. (23) For instance, in holding that a university had no duty to protect its students, the Third Circuit noted that adult students "are capable of protecting their own self interests." (24) Furthermore, "[c]ollege administrators no longer control the broad arena of general morals.... [as] students vigorously claim the right to define and regulate their own lives." (25) Another court held a university not liable for an alcohol-related accident and stated that a student should not be "viewed as fragile and in need of protection." (26) Ultimately, "society considers the modern college student an adult, not a child of tender years." (27)

   A decade after eighteen-year-olds were guaranteed the right to vote, another significant (and seemingly incongruous) age-related legal change occurred: the drinking age was raised to twenty-one. (28) On July 17, 1984, President Ronald Reagan signed the National Minimum Drinking Age Act, which provides that a percentage of federal highway funds will be withheld from any state that allows persons younger than twenty-one to purchase alcohol lawfully. (29) The United States Supreme Court upheld the constitutionality of the Act in 1987. (30) Within a year, all fifty states had adopted legislation setting the legal drinking age at twenty-one. (31)

   Universities have repeatedly had to change the ways in which they regulate alcohol consumption at campus parties in response to new laws. (32) For example, the federal Drug Free Schools and Communities Act Amendments of 1989 requires an institution of higher education to report biennially on the effectiveness of its alcohol and drug programs, as well as the consistency of its enforcement of the policy. (33) Likewise, the Clery Act requires that universities develop policies to prevent crimes and report crime statistics to any employee, student, or applicant on an annual basis. (34) In addition to reporting crime statistics, a university must also provide:

   [a] statement of policy regarding the possession, use, and sale of alcoholic beverages and enforcement of State underage drinking laws and a statement of policy regarding the possession, use, and sale of illegal drugs and enforcement of Federal and State drug laws and a description of any drug or alcohol abuse education programs.... (35) To comply with these new regulations, universities have implemented comprehensive programs to address alcohol abuse on campus. (36) Efforts include education on the effects of alcohol, sponsorship of alcohol-free events, notification to parents when their students are cited for alcohol-related infractions, and adjustment of the academic schedule to avoid long weekends by requiring more Friday classes. (37)

   Litigation over alcohol-related incidents on college campuses arises from various situations, including injuries that result from intoxicated students falling, (38) injuries suffered during parties and hazing rituals involving alcohol, (39) and injuries from other assaults that occur after alcohol has been consumed on campus. (40) One expert in the field of education law summarizes the situation in this way: "[T]he battleground over competing visions of the modern university is the high-risk alcohol culture and its epidemic primary and secondary effects." (41)

   The victim of an alcohol-related assault or accident may attempt to establish the liability of a college or university by asserting a negligence claim. In order to prove the college or university was negligent, the plaintiff must show that the university owed a duty of care to the victim, the university breached its duty, the victim suffered injury or damages, and the university's breach caused the victim's injuries or damages. (42)

   At the outset, this Article introduces the elements of a negligence claim that could be brought against a university when an alcohol-related incident has resulted in a student's injuries. Part II addresses the elements of a negligence claim and breaks the various arguments into subparts. (43) Much of this part of the Article is focused on the element of duty, as courts have generally concluded that there is no duty in these cases. Thus, analysis of the other elements is often unnecessary and negligence claims often fail. The analysis in Part III provides a discussion of the tension between the expectations of "helicopter parents" with regard to the caretaker role of the university versus the well-established rule that universities have no custodial relationship with their adult students and have no legal duty to supervise or protect them from harm. (44) This Article argues that it would be detrimental to return "full circle" to the notion that a university should act in loco parentis. A vital part of the higher education process involves the maturation of students into full, productive adulthood. As part of this process, students must learn to take responsibility for themselves.

   Part IV of this Article concludes that universities are not and should not be liable for the tragic injuries that result from rampant alcohol abuse in most instances. (45) Moreover, the obligation to ensure that students do not abuse alcohol cannot be assigned solely to university administrators who have no legal duty to monitor the students' private lives. Rather, shaping students' values and influencing the choices that adult students make must also come from the students themselves--as well as parents and community leaders--through preventive programs, leadership, and peer-to-peer guidance.

2. ELEMENTS OF A NEGLIGENCE CLAIM AGAINST A UNIVERSITY FOR ALCOHOL-RELATED INJURIES

   1. Does a University Have a Legal Duty to Protect its Students from Alcohol Related Harm?

      One of the most difficult tasks for plaintiffs in a negligence action against a university is establishing that the school owed the...