The Law of Higher Education. William A. Kaplin
for injuries to trespassers.
Invitees have attempted to impose tort liability on a college when some form of criminal activity on campus results in injury. Again, the majority rule is that the criminal activity must have been foreseeable. For example, in Nero v. Kansas State University, 861 P.2d 768 (Kan. 1993), the Kansas Supreme Court reversed a summary judgment award for the university and ordered the case to be tried, ruling that a jury would need to decide whether the rape of a student by a fellow student in a residence hall was foreseeable because the alleged rapist had been accused of an earlier sexual assault on campus and university officials were aware of that fact when they assigned him to live during summer session in a coed residence hall. But in L.W. v. Western Golf Association, 712 N.E.2d 983 (Ind. 1999), the Indiana Supreme Court ruled that the owners of a “scholarship house” at Purdue University were not liable to a student who became intoxicated and later was raped in her room by a fellow scholarship house resident. Finding that there was no record of similar incidents that would have made such a criminal act foreseeable, the court refused to impose liability.
The legal analysis is similar when plaintiffs allege that an injury occurring at a recreational event sponsored by the college was foreseeable. The Supreme Court of Kansas ruled that Wichita State University (WSU) was not liable for the death of an invitee who was shot by a gang member after a fireworks celebration on campus. In Gragg v. Wichita State University, 934 P.2d 121 (Kan. 1997), the children of the invitee, Ms. Gragg, claimed that the university and several corporate sponsors of the fireworks program failed to provide adequate security, that the lighting was inadequate, and that the defendants had failed to warn the victim that there had been criminal incidents near the WSU campus. The court ruled that the university and other defendants did not owe Gragg a legal duty to protect her from the criminal act of a third party. Since the WSU police did not know that the assailant was on campus or that he intended to shoot a rival gang member, the shooting was not foreseeable. The court distinguished Nero because, in Nero, the university was aware of the assailant's previous criminal record. No such knowledge was present in this case. Furthermore, similar celebrations had been held on campus for the prior 17 years; no shootings or other violent crime had taken place.
But in Hayden v. University of Notre Dame, 716 N.E.2d 603 (Ind. Ct. App. 1999), a state appellate court reversed a summary judgment award for the university. A football fan with season tickets was injured when a football was kicked into the stands and spectators lunged for it. The plaintiff argued that the university should have protected its spectators from being injured and that lunging fans were common at Notre Dame football games. The court ruled that because there were many prior incidents of fans lunging for footballs, Notre Dame should have foreseen the type of injury sustained by the plaintiff. Given the foreseeability of this behavior, the court ruled that Notre Dame owed the plaintiff a duty to protect her from injury.
Even if a college is not the owner of the premises alleged to be dangerous, if it has some control over that property, or if students have access to the property, the college could be liable for injuries related to that property. For example, in Ginsburg v. City of Ithaca, Cornell University et al., 839 F. Supp.2d 537 (N.D.N.Y. 2012), the father of a Cornell student who had committed suicide by jumping from a bridge on the Cornell University campus in 2009 sued Ithaca (which owned the bridge) and Cornell for negligence. The father claimed that, because 29 individuals had jumped from several bridges on or near Cornell's campus since 1990, Cornell and Ithaca had a duty to “implement appropriate suicide prevention measures on the bridge” when it was redesigned and reconstructed 2 years earlier. The trial court ruled that “it was clearly foreseeable that someone may commit suicide” by jumping from the bridge used by the son and rejected Cornell's motion for summary judgment. The court explained that, “given the history of suicides and suicide attempts, defendants' public acknowledgement of the phenomenon, and the bridge's accessibility to a student population—15 percent of which regularly considers suicide—shows defendants had actual, or at least constructive, knowledge that a suicide attempt from the bridge was foreseeable” [839 F. Supp.2d. at 541]. Landowners and landlords also have a duty to provide accurate information about potentially dangerous conditions to independent contractors working on their property. For a discussion of this duty, see Bennett v. Trevecca Nazarene University, 216 S.W.3d 293 (Tenn. 2007). Cornell University, which has several open gorges that cut through its campus, has faced other lawsuits involving student death or injury on those premises. See, for example, King v. Cornell University, 973 N.Y.S.2d 534 (N.Y. App. Div. 2013) (denying summary judgment to university in premises liability action based on student's death from falling into steep cliff while traversing university-maintained hiking trail at night while intoxicated).
3.2.2.3 Liability for injuries related to on-campus instruction. Students or other invitees injured while involved in on-campus instructional activities may file negligence claims against the institution, the instructor, or both. For example, in McDonald v. University of West Virginia Board of Trustees, 444 S.E.2d 57 (W. Va. 1994), a student enrolled in a theater course sued the university for negligence, seeking damages for a broken leg and ankle. The professor was teaching a class in “stage movement” and had taken the class outdoors, where the students were asked to run across a lawn simulating fear. Several students performed the exercise before the plaintiff took her turn. As she was running, she encountered a small depression in the lawn, stumbled and fell, and was injured.
Although the jury had found for the plaintiff, the trial judge had entered judgment for the university, which the Supreme Court of West Virginia affirmed. The student had sought to demonstrate that the professor's supervision of the class was negligent, but the court disagreed. The professor had inspected the lawn area before the class and had not noticed the small depression. Furthermore, evidence showed that theater students at the university were given safety instructions and that the professor had discussed safety issues in that class. The syllabus included information on safety, including what clothing to wear, layering of clothing, and body positioning. The faculty member required students to wear high-top tennis shoes as a further safety precaution. The faculty member was present at the time of the student's injury, and the court found that no amount of supervision or scrutiny would have discovered the “small depression” that caused the student to fall. Therefore, said the court, the faculty member's actions were not a proximate cause of the injury, and the university itself was not required to maintain a lawn completely free of “small depressions.”
This case is notable because of the relatively high level of caution apparently displayed by the faculty member. Clearly, the safety instructions (which, since they were on the course syllabus, were easily proven) and the faculty member's statement that she inspected the lawn area prior to the class were important to the defense of this lawsuit. A similar degree of care could not be demonstrated in another case in New York, and this difference appears to have caused a very different result. In Loder v. State of New York, 607 N.Y.S.2d 151 (N.Y. App. Div. 1994), Alda Loder was enrolled in an equine studies course at the State University of New York at Cobleskill. It was her first such course. Each student was required to perform two weeks of “barn duty,” which included grooming a horse assigned to the student. When Ms. Loder approached the stall of the mare to which she was assigned and attempted to enter the stall, the mare kicked her in the face, causing serious injuries. The student sued, alleging that the university was negligent both in the way that the horse was tethered in the stall and in its failure to properly instruct the student with respect to how to enter the stall of a fractious horse.
The trial court had found the university 60 percent liable for the student's injury. The university appealed, but the appellate court sided with the student. First, said the appellate court, there was sufficient evidence of the horse's propensity to kick to suggest that the university was negligent in its method of tethering the horse. Furthermore, there were no written instructions on how to enter the horse's stall. The university employee who had shown the student how to enter the stall had used the incorrect procedure, according to an expert witness called by the university. Therefore, the court concluded, although the owner of a domestic animal normally is not responsible for injuries caused by that animal unless the animal is known to be “abnormally dangerous,” in these circumstances, the university was negligent both in failing to instruct the student regarding safety and in