Does a public university owe a duty of care to protect students from assaultive behavior of a student known to the university to have threatened assaulting others?

Posted in: Tort Liability by Steven Vartabedian on

CollegeEducational institutions have unfortunately become the location of assaults on innocent bystanders by individuals with hateful agendas.  When some of the most horrific acts have been committed, members of the public often have asked, “Were there any warning signals that could have been acted upon to avoid this tragedy?”

The Regents of the University of California v. Superior Court (Rosen) 2015 DJDAR 11195 (filed October 7, 2015)  involves a public university (UCLA) sued by a single victim, Katherine Rosen, who was stabbed and had her throat slashed by fellow student Damon Thompson during an on-campus chemistry lab. A few months before the attack, the university had treated Thompson, who had made threats to others, for symptoms suggesting schizophrenia and paranoia.

Defendants moved the trial court for summary judgment, claiming public universities (and their employees) do not have a legal duty to protect adult students from third party criminal misconduct.   The trial court (Los Angeles County Superior Court) disagreed, and denied the motion finding a duty of care owed to students and business invitees, especially where defendant had voluntarily undertaken to protect people like Rosen by providing mental health treatment to Thompson.  On defendant’s petition for writ of mandate before it, the Court of Appeal, Second Appellate District, Division Seven, concluded that a public university has no general duty to protect its students from criminal acts of other students, resulting in dismissal of the action.

The appellate court reviewed the record before it, which gave the picture of a mentally disturbed Thompson who had come to the attention of his professors and other university contacts as a person angered by delusions that other students were offending him.  The record details the mental counseling he received from the university and other altercations he had on campus.  However, the reviewing court found no basis to depart from the settled “rule that institutions of higher education have no duty to their adult students to protect them against the criminal acts o third persons.”  (Ochoa v. California State University (1999) 72 Cal.App.4th1300, 1304.)  A university has no special relationship with its adult students, states the instant court, to protect against the acts of others, even though cases have suggested a duty to protect against one harming oneself while performing class-related tasks. Essentially the same non-duty applies to business invitees.

The court then addressed what plaintiffs viewed as a critical body of facts in this case: that UCLA had identified the potential danger of Thompson, and had undertaken measures to have him treated for his mental illness.  Based on this background and the theory that UCLA breached this undertaken duty, plaintiff asserted the negligent undertaking doctrine, which has been characterized as an “exception to the no-duty-to-protect rule.” (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 235.)   But the appellate court here found important elements of this doctrine missing, rendering no triable issues of fact.  First, there is no evidence that UCLA’s actions increased the risk of harm that Thompson posed.  Second, there is no evidence Rosen was harmed because she detrimentally relied on any measure taken by UCLA.  Additionally, the court found there was no arguable evidence of communications to Thompson’s university psychotherapist that gave her a statutory duty to warn persons such as Rosen.

The majority opinion drew a vigorous dissent, which in the first paragraph of it lengthy discussion quotes from the UCLA brochure it assumes new students rely upon:  “Welcome to one of the most secure campuses in the country.”  In a nutshell, the dissent sees “duty” in part as a matter of public policy.  Assuming that there is strong public policy to protect students as they matriculate on public university campuses, the question of whether such duty dictated by such policy has been breached is a triable issue of fact, comments the dissent.

In analyzing the majority opinion, I am inclined to think that the majority itself is concerned about policy, but of a bit different take.  This is the notion that to find duty here would be saying essentially, “No good deed goes unpunished.”  True, if the appellate court had gone the way of the dissent, plaintiff would still have to prove negligent breach of duty.  But, would public institutions be less inclined to offer assistance to emotionally-troubled students, if they feared they would be opening the door to liability should the student be non-responsive to treatment and harm others?

Plaintiff’s counsel will likely petition the state Supreme Court.  Competing public policies might be a good reason for the Supreme Court to take this case.

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