When Does a University Have a Duty to Protect Students from Campus Harms? The Fall of the Bystander Era and the Rise of a Special-Relationship Theory of Duty.

AuthorMcGuire, Nathan F.

"[L]ike the era of in loco parentis, the 'bystander' era from which those 'no duty' decisions emerged also appears to be drawing to a close. ... '[U]niversities are clearly not bystanders or strangers in regards to their students.'" (1)

  1. Introduction

    There is a strong correlation between student alcohol use on American college campuses and increased risk of harms, such as sexual assault, physical injury, and death. (2) According to one government report, drinking contributes to over 1,500 student deaths each year. (3) The relationship between alcohol and sexual assault is also well documented: By one count, nearly 100,000 students between the ages of eighteen and twenty-four reported experiencing alcohol-related sexual assault. (4)

    When students suffer harm as a result of alcohol-related incidents, students and their families often turn to tort law to hold universities accountable. (5) To prevail on a negligence claim, the plaintiff must prove that the university owed her a duty of care, the university breached its duty, and the breach was the cause of the plaintiff's damages. (6) The existence of a duty is a threshold determination. (7) In some cases, a special relationship may establish the duty element. (8)

    Social trends can shape how courts define and analyze tort duties. (9) For much of the first half of the twentieth century, colleges and universities acted in loco parentis, and society expected them to provide for the physical safety and moral welfare of their students. (10) Following the demise of in loco parentis in the 1960s, however, courts were generally reluctant to impose an affirmative duty to protect students based solely on the university-student relationship. (11)

    Courts are increasingly open to premising a limited tort duty on a special-relationship theory in cases involving alcohol-related and other harms. (12) In several recent cases, the high courts of Massachusetts and California held an affirmative duty exists based on a special relationship. (13) For instance, in Helfman v. Northeastern University, the Massachusetts SJC recognized that in some circumstances, a special relationship between universities and their students imposes a duty on universities to protect intoxicated students from harms. (14) The Helfman court held that to trigger an affirmative duty to protect an intoxicated student, a university must have actual knowledge that a student is in imminent danger of serious physical harm as a result of alcohol intoxication and incapable of helping oneself. (15)

    This Note examines how courts analyze a special-relationship theory of duty in negligence actions student-plaintiffs bring against universities for alcohol-related harms. (16) This Note traces the development and demise of three eras of university tort liability, showing how social norms shape courts' analysis of the duty issue. (17) To better assess whether universities should be liable for alcohol-related harms, this Note also examines how courts analyze duty in cases involving analogous harms, including student suicide and violent crime. (18) Then, through the lens of the Helfman case, this Note argues that a special-relationship duty in alcohol-related cases is consistent with contemporary societal expectations, but courts must provide universities with clear guidance about when the duty is triggered and what obligations it imposes. (19) This Note concludes with a prospective look at how courts might build off of Helfman to expand university tort liability to other harms. (20)

  2. History

    1. The Evolving University-Student Relationship

      The "particularities" of any given relationship are important in defining a tort duty. (21) As one court put it, duty is "an expression of the sum total of those considerations of policy which lead the law to say that a particular plaintiff is entitled to protection." (22) To better understand how courts analyze the duty issue, this section will provide a brief overview of how social and political factors have changed the nature of the university-student relationship throughout the twentieth and twenty-first centuries. (23)

      1. In Loco Parentis and Its Demise

        In the first half of the twentieth century, society charged universities with the intellectual and moral development of their students and entrusted universities with students' physical safety. (24) Historically, American higher education traced its educational philosophy to medieval English residential universities. (25) Students left their families' homes to live at a residential campus where the relationship between students and teachers mirrored the familial relationship. (26) The American doctrine of in loco parentis grew out of this relationship: It was initially an English tort defense that a tutor could raise against a student's battery charge. (27) The theory was that parents delegated part of their parental authority to the tutor, and thus, the tutor could employ necessary discipline against the student without incurring liability. (28)

        The 1960s brought radical change to the university-student relationship. (29) Students began to seek more privacy and autonomy. (30) Nationally, the ratification of the Twenty-Sixth Amendment in 1971 gave all American citizens eighteen years and older the right to vote. (31) Americans began to see college students not as children in need of protection, but rather as adults who could vote, fight in war, and lead their own lives on campus without interference from university administrators. (32) The push for student autonomy--the right for students to direct their own lives free from university control--largely succeeded. (33)

      2. The Contemporary University-Student Relationship

        Today, most college students are legally adults, and the primary mission of universities is academic. (34) In many ways, the relationship between universities and their students has drastically changed since the sixties. (35) Today's college experience is defined in part by increased awareness of campus risks, such as alcohol use, hazing, and sexual assault, with some students calling for greater university involvement in aspects of student life. (36)

        Alcohol use is--and always has been--a prominent part of campus culture. (37) Studies suggest that alcohol use contributes to a number of risks, including sexual assault and hazing-related injuries. (38) By some counts, somewhere between one-half and three-quarters of campus sexual assaults involve alcohol. (39) Moreover, student injuries resulting from alcohol-fueled hazing rituals increasingly gamer media attention. (40) In one recent, high-profile case, an intoxicated freshman at Pennsylvania State University died after a fall down stairs resulted in traumatic brain injuries and internal bleeding from a ruptured spleen. (41) Recognizing the risks of alcohol abuse, many universities employ measures to aid intoxicated students who might be in danger, including medical amnesty policies. (42) And some universities offer educational programs to help students learn how to manage alcohol and substance use. (43)

        Sexual assault is another distinct problem on campus that has garnered significant media and student attention. (44) One recent survey conducted at thirty-two universities found that the overall rate of nonconsensual sexual contact across the schools was 13%. (45) Other studies suggest that the majority of rapes occurring on campus take place in dorms, with roughly 10% occurring at on-campus fraternities. (46) The federal government has focused efforts on stamping out sexual assault and harassment at federally funded educational institutions. (47) Moreover, student activists have agitated for more stringent regulation of campus sexual assault. (48) Universities have responded to federal regulations and student pressure by creating offices to manage sexual assault allegations and by investing in preventative initiatives. (49) In response to a campus survey finding roughly 12% of Harvard students reported experiencing nonconsensual sexual contact, President Lawrence Bacow called on the university to "do more" to prevent sexual assault by expanding initiatives like bystander training. (50)

        Student mental health and suicide has become another area of concern on college campuses. (51) One study estimated that nearly 1,100 college students die by suicide each year. (52) In response, many large universities now offer counseling services to undergraduate and graduate students. (53)

    2. University Tort Liability for Harms Under a Negligence Theory

      1. Basic Elements of a Negligence Claim

        When students suffer harm on campus, they and their families often turn to negligence law to hold schools liable. (54) To prevail on a negligence claim, a plaintiff must show that the university owed them a duty of reasonable care, the university breached its duty, there were damages, and the breach caused the damages. (55) While breach, causation, and damages are questions of fact, the existence of a duty is a question of law. (56) Courts reference "existing social values and customs and appropriate social policy" in determining whether a duty exists. (57) The duty element is a threshold matter; whether a duty exists will determine whether a negligence claim will survive a motion to dismiss or a motion for summary judgment. (58)

      2. The Development of Duty

        A foundational principle of negligence law is that individuals generally do not have a duty to rescue or protect others from harms the individual did not create. (59) A special relationship between the plaintiff and defendant, however, may trigger an affirmative duty to protect. (60) Such relationships typically form in the context of common carriers or jails. (61) As in those contexts, the facts that make a relationship special include dependence and vulnerability on the plaintiff's part, and some control by the defendant over the plaintiff's welfare. (62) Moreover, courts consider whether the defendant could foresee being required to...

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