The Law of Higher Education. William A. Kaplin
The availability of the sovereign immunity defense varies greatly from state to state. While the doctrine was generally recognized in early American common law, it has been abrogated or modified in many states by judicial decisions, state legislation, or a combination of the two.
When a public institution raises a defense of sovereign immunity, the court must first determine whether the institution is an arm of the state. Because the doctrine does not protect the state's political subdivisions, entities that are separate and distinct from the state are not protected by sovereign immunity. If the court finds that the institution is a state entity, then the court must determine whether the state has taken some action that would divest the institution of sovereign immunity, at least for purposes of the lawsuit. Some states, for example, have passed tort claims acts, which define the types of lawsuits that may be brought against the state and the procedures that must be followed (see, for example, Florida's Tort Claims Act, Fla. Stat. § 768.28 (2011)). Other exceptions have been created by decisions of state supreme courts.
A case decided by a Texas appellate court illustrates the substantial protection afforded a public university—but not one of its employees—by a state tort claims act. In Prairie View A&M University of Texas v. Mitchell, 27 S.W.3d 323 (Tex. App., 1st Dist. 2000), a former student sued the university when it would not provide verification of his engineering degree. Despite the fact that the student produced a valid transcript and a diploma issued to him earlier by the university, the university registrar's office would not confirm that he had earned a degree, and the former student's employer required him to take a leave of absence without pay because his degree could not be confirmed by the university. The university defended the negligence lawsuit by claiming that it was protected by sovereign immunity under the Texas Tort Claims Act (Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2) (West 1997)).
Although the trial court rejected the university's defense, the appellate court sided with the university. The student cited an exception in the state's Tort Claims Act that abrogated immunity if a “personal injury” had resulted from “a condition or use of tangible personal or real property.” Arguing that it was the university's misuse of its computers or other equipment that caused his injury, the student asserted that the university's actions should fall within this exception to immunity. The court disagreed. It was actions of university employees, rather than the “defective property,” that caused the alleged injury to the plaintiff, according to the court. Although the university was immune from liability in this case, the court noted that the registrar, who had been sued individually, was not.
A college may not be able to take advantage of the sovereign immunity defense in a situation where the action complained of is not a “governmental function,” but one that a private entity could perform. For example, in Brown v. Florida State Board of Regents, 513 So.2d 184 (Fla. Dist. Ct. App. 1987), a student at the University of Florida drowned in a lake owned and maintained by the university. In response to the university's defense of sovereign immunity in the ensuing wrongful death claim, the appellate court ruled that since the type of activity was not a governmental one, the university could not assert the immunity defense; once the university decided to operate a lake, it then assumed the common law duty of care to those who used it.
But the definition of a “governmental function” is inconsistent across states. A New York appellate court determined that when a state university provides security at a university-sponsored concert, it is performing a governmental function and is thus immune from tort liability. In Rashed v. State of New York, 648 N.Y.S.2d 131 (Sup. Ct., App. Div. 1996), the plaintiff had been stabbed by another individual in the audience at a rap concert sponsored by City University. The plaintiff claimed that the university failed to provide adequate security, despite the fact that audience members were screened with a metal detector and a pat-down search. The court ruled that unless the plaintiff could show that the university had assumed a “special duty of protection,” a showing that the plaintiff had not made, no liability could arise for this government function.
Although private institutions can make no claim to sovereign immunity, nonprofit schools may sometimes be able to assert a limited “charitable” immunity defense to certain tort actions. The availability of this defense varies from state to state. For example, a federal appellate court roundly criticized the charitable immunity doctrine in President and Directors of Georgetown College v. Hughes, 130 F.2d 810 (D.C. Cir. 1942), refusing to apply it to a tort suit brought by a special nurse injured on the premises of the college's hospital. And in Mullins v. Pine Manor College, 449 N.E.2d 331 (Mass. 1983), the Supreme Court of Massachusetts, noting that the state legislature had abrogated charitable immunity for torts committed in the course of activity that was primarily commercial (Mass. Gen. Laws ch. 231, § 85K (2010)), rejected the college's charitable immunity defense. The court also refused the college president's request to apply a good-faith standard, rather than a negligence standard, to his actions. (A good-faith standard would absolve the president of liability even if he were found negligent, as long as he had acted in good faith.)
A more recent Massachusetts case, however, refused to characterize the college's activity in question as commercial in nature. Under the Massachusetts law cited above, a charitable organization, even if found liable for negligence, can be required to pay no more than $20,000 in damages if the tort was committed in an activity that is in furtherance of the organization's charitable purposes and is not commercial in character. In Goldberg v. Northeastern University, 805 N.E.2d 517 (Mass. App. Ct. 2004), the parents of a student who died after visiting the university's health center sued the university, arguing that the negligence of its staff caused their daughter's death. A state appellate court ruled that the operation of a student health center was not a commercial activity, and thus was within the charitable purposes of the university, so the statutory cap on damages applied to the lawsuit. The court went on to rule, however, that the university had not been negligent in operating the health center and found for the university.
Despite these attacks on the charitable immunity doctrine in other states, the New Jersey Supreme Court has upheld the doctrine and has applied it to public as well as private colleges. In O'Connell v. State of New Jersey, 795 A.2d 857 (N.J. 2002), the court interpreted the state's Charitable Immunity Act (N.J. Stat. Ann. § 2A:53A-7-11), which applies to any “nonprofit corporation, society or association organized exclusively for religious, charitable or educational purposes.” The plaintiff, injured when he fell down a stairway on campus, had claimed that, as a recipient of public funds, Montclair State University should not be protected under this doctrine from its alleged negligence. The court disagreed, stating that the public university was a nonprofit entity organized exclusively for educational purposes, and the court found no legislative intent to exclude public colleges from the protections of the Charitable Immunity Act. Because the student was a beneficiary of the university's educational purposes, said the court, the plain meaning of the statute gave the university immunity from liability.
An institution's charitable immunity may also protect it from liability if one of its students is injured as a result of a school-sponsored event in another state (Gilbert v. Seton Hall University, 332 F.3d 105 (2d Cir. 2003)). Similarly, a New Jersey appellate court ruled that charitable immunity precluded an award of damages by a jury against the university when the parents of a student who fell out of a residence hall window and died sued the university for negligence (Orzech v. Fairleigh Dickinson University, 985 A.2d 189 (N.J. Super. Ct. App. Div. 2009)). See also Green v. Monmouth University, 178 A.3d 83 (N.J. Super. Ct. App. Div. 2018) (upholding award of summary judgment to defendant university on charitable immunity grounds in slip-and-fall case brought by non-student plaintiff injured at concert held on university property but organized by entities not affiliated with the university).
Charitable immunity may not protect an institution, however, in cases where willful, wanton, or grossly negligent conduct or intentional acts are alleged. In Hardwicke v. American Boychoir School, 902 A.2d 900 (N.J. 2006), the New Jersey Supreme Court rejected the defendant boarding school's claim that the plaintiff's negligence lawsuit, alleging sexual abuse when he was a 12-year-old residential student, was barred by charitable immunity. The court also held that the defendant could be held vicariously liable for acts of its employees if they were found to have engaged in child abuse. However,