With the potential danger to our colleges on the rise, we need answers more than ever on how to make college life safer and how we should fairly and reasonably allocate the rights and responsibilities of students and universities. Presently university safety law does not send a clear message on how that issue should be met. While parents may view college life like it is portrayed in the college catalogs, university administrations are well aware of the potential dangers.

Historically, courts believed that the American university stood for the most part in loco parentis insulated from legal scrutiny, and like governments, considered to be an institution outside the safety rules of the legal system, in a sense above the law. In its inception, of course, in loco parentis was more about the university rights and powers over the student, not their duties towards their students.

In addition, if an institution was not private, it was a public university and the courts found another way to keep universities safe from legal liability, governmental immunity. Immunity became impunity.

However, most jurisdictions since the 1960’s abandoned the concepts of in loco parentis and courts entered into a new era of accountability raising anew the question of who bears responsibility for the safety of students. We have been left with a potpourri of conflicting images which only adds to uncertainty of law and of university administration. The way courts have decided cases and imagine university student relations has a major impact on not only student safety, but also education. A productive learning environments demands a safe environment.

By the late 1970’s until the mid 1980’s court decisions started analyzing such cases from the perspective of “duty/no duty”. The university was cast as the helpless bystander to student life and danger to limit liability of the university for student injury. Bradshaw v. Rawlings, 612 F.2d 135 (3rd Cir. 1979). Considered to be the seminal case on the university’s duty, a federal court quessing at what the law in Pennsylvania would become, set forth:

“Our beginning point is a recognitition that the modern American College is not an insurer of the safety of its students. Whatever may have been its responsibility in an earlier era, the authoritarian role of today’s college administrations has been notably diluted in recent decades. Trustess, administrators, and faculties have been required to yield to the expanding rights and privileges of their students. By constitutional amendment, written and unwritten law, and through the evolution of new customs.”

In general, negligence law is the major vehicle by which people sue universities. Those claims are various: negligent maintenance of premises, negligent security, negligent representations, negligent failure to give reasonable warnings, negligent failure to control or protect against dangerous persons, negligent supervision of school activities such as a field trip or lab experiment.

The four elements: duty, breach of duty, causation, damage, are legal ways of identifying essential elements of a claim.

The imposition of liability in deciding college student injury cases was fully set forth in an oft cited case that considered the factors and policies when imposing liability on a university. Tarasoff v. Regents of the Univ. of Cal., 551 P.2d 334 (Cal. 1976).

a. Foreseeability of harm/danger
b. seriousness of the harm
c. closeness between the defendant’ conduct and the injury produced.
d. moral blameworthiness of the defendant’s conduct
e. policy of preventing future harms
f. the burden on and consequences to the defendant and the community should a duty be imposed
g. the cost, availability and prevalence of insurance.

In Bradshaw, the court said that beer drinking by college students was a way of life and that excessive drinking is a fact of that life. That the university was powerless to stop it, and that there was no legal duty to do anything about it.

However, the universities no duty approach had to deal with the same duties that businesses owe their customers, landlords owe their tenants, and misfeasance or the taking of action which causing harm.

Universities effectively attract and house large groups of people, sponsor events and activities, often require students to live on campus and participate in off campus activities, and plan, regulate, and administer most aspects of the student life. Universities essentially create an environment for students and controls almost all of the major strategies of life there.

No one can seriously contend that increased security which can prevent criminal intrusion diminishes the overall academic mission or unduly intrudes upon some student rights. To the contrary, it improves the overall educational mission of the school.

The most famous case to acknowledge the rights of students to safe campus housing was the Mass Supreme Court case in Mullins v. Pine Manor College, 449 N.E. 2d 331 (Mass. 1983). The court found that, first, the responsibility of the university was not parental; it was based on the same way law treats ordinary tenants. But the Court also stated that students rights were not won at the expense of safety. The Court said:

[C]hange in college life, reflected in the general decline of the theory that the college stands in loco parentis to its students, arguably cuts against this view. The fact that the college need not police the morals of its resident students.. does not entitled 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 the colleges themselves, that reasonable care will be exercised to protect resident students from foreseeable harm.

By taking a “duty” stance, the courts enable carelessness, distancing, or inattention by administrators and invite injury. While such a position may seem compelling in alcohol related injury cases, it is difficult to believe that same position when the issue was fixing broken locks on lobby doors, sweeping sidewalks, getting weather reports before taking students on an icy lake, or turning your back on the off-campus victim of a deranged student.

The university is a unique environment and not always like a government or a typical business.

Courts typically deal with similar questions when considering university liability:

  1. Premise/landlord liability
  2. responsibility to control dangerous persons on campus and/or prevent harm caused by them;
  3. Responsibility regarding student activities
  4. responsibility for student alcohol use and abuse.

Governmental immunity for public universities has not completely disappeared. In fact, they enjoy substantial immunity from lawsuits. However, even in Texas, the Court has offered a stern rebute to governmental immunity. Delaney v. University of Houston. 835 S. W. 2d 56 (Tex. 1992). Delaney basically says that a governmental university is not entitled to permit unsafe tenant conditions to persist under the umbrella of pretending to be using a kind of sovereign discretion. There the court held that fixing locks can stop crime and lead to a real sense of safety on campus, thereby improving education. The university did not do its part. The rule in Delaney, that a public university must defend the reasonableness of its failure to perform maintenance which when unperformed enhances the opportunity for crime on campus, tends to prevent injury to, and fear of injury by, students.

While a university has a responsibility to use reasonable care to prevent injury, it dos not if the danger presented is “open and obvious” to a student who then encounters it by the student’s own actions. For example, Banks v. Trustees of the University of Pennsylvania 666 A.2d 329 (Pa. Super. 1995) A student who fell on university property sue the university and lost. The Court found the student had other reasonable alternatives to get to where she was going; secondly, even if the danger is open and obvious a university has a responsibility only if it is foreseeable that a student overlook the obvious danger and proceed anyway.

The hottest area in university liability law is the growing responsibility of universities to protect students on campus from dangerous persons who come from off campus or who come from the student ranks themselves. Tarasoff imposed a duty to protect some individuals from foreseeable danger arising from university relationships with dangerous persons on campus. However, the case of Furek v. The University of Delaware, signaled the beginning of the end of the “duty” argument for universities on the issues regarding dangerous persons/activities on college campuses. 594 A.2d 506(Del. 1991).

In that case involving a student who was seriously injured during a fraternity “hazing ritual” the Delaware Supreme Court determined that:

  1. The university/student relationship is unique and it is more than strictly educational (a clear rejection of Bradshaw); the primary function of the university is to foster “intellectual development through an academic curriculum.”
  2. May other aspects of university life are “university guided,” including housing, food, security, extra curricular activities, and student life;
  3. Students are not solely responsible for their own safety simply because they are adults (the court saw no empirical or other support- as suggested in other cases of the bystander era-that university supervision was inversely related to the maturation of college students or that supervision and control of dangerous student activities would make for an inhospitable or educational dysfunctional college experience);
  4. The fact that students may be adults does not make university concerns and efforts related to student alcohol use inappropriate (noting that in Bradshaw the students were not adults under drinking law); The university is a unique relationship with students because of the “situations created by the concentration of young people on a college campus and the ability of the university to protect its students.”

Furek does not absolve the students from responsibility. It is a shared one and the victim is not always entirely blameless. Furek signals the end of blind judicial acceptance of the idea that because colleges generally act reasonably regarding student safety, there is no legal duty to students. The language of Furek can be used in the most serious of student injuries: Attacks. Students are owed reasonable care to prevent foreseeable attacks, exactly the duty owed at a private school or to any invitee/tenant.

Of course, in cases when liquor is in the mix, potential college liability wanes considerably, although there are significant cases that impose liability like Furek. Two of those cases occurred in Pennsylvania.

In Booker v. Lehigh University, 800 F. Supp. 234 (E.D. Pa. 1992) a college freshman claimed that because he was a minor, the college had a general duty to control student consumption of alcohol on campus and that the breach of this duty caused her fall. She lost. The court did note, however, that if the university, not a fraternity, had served liquor or otherwise planned or purchased and supplied liquor, the result would have been different (an interesting observation given the facts in Bradshaw.)

In Millard v. Thiel College, 611 A.2d 715 (Pa. Super. 1992) a student was killed riding a motorcycle on a public street after drinking at a fraternity party. The university was held not liable.

If you are a victim of school or university crime or violence, Monahan Law Practice are experienced school violence lawyers. 610-363-3888

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