The Law of Higher Education. William A. Kaplin
The student in Loder was a beginning student, and her lack of familiarity or experience with horses was a significant factor. If a student is experienced, however, a court may be less sympathetic. In Niles v. Board of Regents of the University System of Georgia, 473 S.E.2d 173 (Ga. Ct. App. 1996), the plaintiff, a doctoral student in physics at Georgia Tech, was injured in a laboratory accident. The student had been working in the laboratory on a project related to a course in superconducting crystals and had been cleaning some equipment with a mixture of acetone, ethanol, and nitric acid, a highly explosive combination. A more senior doctoral student had suggested that “recipe” as a cleaning solution. Following the accident, the student asserted that the university, through his professor, was negligent in its failure to instruct him that this combination of substances was volatile.
The court was not sympathetic to the student's claim that he needed instruction. He had graduated summa cum laude with a major in chemistry and had obtained a master's degree in physics with a 4.0 average. He had spent “hundreds of hours” in laboratories, according to the court, and had previously worked with all three of the substances. Therefore, said the court, the professor had the right to assume that the student either would know of the dangers of these substances or would “perform the research necessary to determine those dangers and take the necessary precautions” (473 S.E.2d at 175). Therefore, the faculty member had no duty to warn the student about the dangers of mixing “common chemicals,” said the court. (For a similar case with the same result, see Fu v. University of Nebraska, 643 N.W.2d 659 (Neb. 2002).)
The defense of “assumption of risk” is routinely used against negligence claims, as a defendant argues that a plaintiff was fully aware of the risks of a particular course of action so that the defendant had no duty to warn the plaintiff of those dangers. In cases involving classroom instruction, however, this defense may have limited success. For example, in Drogaris v. Trustees of Columbia University, 743 N.Y.S.2d 115 (N.Y. App. Div., 2d Dept. 2002), the court denied a university's motion for summary judgment in a case in which a student enrolled in a graduate course in kinesiology (the study of movement) was injured after the course instructor used her for a physical demonstration of a clinical test. The student alleged that the instructor hyperextended her leg, resulting in a muscle tear. The court rejected the university's argument that the student assumed the risk of injury by participating in the class.
If the equipment that a college or university provides for a student's use is defective or incorrectly assembled and the student is injured as a result of an otherwise proper use of the equipment, it is likely that a court will find the school liable for negligence, even if it is in a state with a tort claims act. See, for example, Texas State Technical College v. Beavers, 218 S.W.3d 258 (Tex. App. 2007). And if an instructor allows a student to engage in potentially dangerous activities (here, welding metal with a torch) without supervision or proper protective clothing, the university may be held responsible for the student's injuries (Lei v. City University of New York, 823 N.Y.S.2d 129 (N.Y. App. Div. 2006)).
In physical injury claims related to classroom activities, courts seemingly will consider a student's knowledge level. If the student is a novice, as in Loder, Lei, Beavers, and Drogaris, there is likely to be a duty to instruct and supervise. If the student is experienced, however, and has knowledge that is similar to the knowledge of the professor, then the court may not find a duty to supervise or instruct. And, of course, the more an institution can demonstrate that safety precautions and safety training were carried out, the more likely the institution is to prevail.
In the aftermath of the tragic mass shootings that occurred in classrooms on the Virginia Tech campus in 2007, two families of deceased students sued the Commonwealth of Virginia for wrongful death (having elected not to participate in a special settlement fund established in the wake of the tragedy). A lower court awarded the families money damages under the state's tort claims act, finding that university officials owed the decedents a duty to be warned of potential risk of harm from the shooter, who had killed one student and critically wounded another in a dormitory before embarking on a killing spree at Norris Hall, an academic building. The university knew of the dormitory incident, and that the shooter had not been apprehended, but relied on police reports that the violence was an isolated crime, that the shooter had fled the area, and that no ongoing threat was posed to others.
In a high-profile decision, the lower court's award was overturned on appeal to the Supreme Court of Virginia. For the sake of argument, the court assumed that a special relationship existed between the university and its students. Even assuming such a relationship, the court held that the university was under no duty to warn students about the potential for criminal acts by third parties, as the risk posed was neither known nor reasonably foreseeable to the university. Commonwealth of Virginia v. Peterson, 286 Va. 349 (2013). See also Desir v. Mallett, 2015 WL 3492499 (Ct. App. Oh. 2015) (holding that defendant college owed no duty to warn or protect student who was stabbed by assailant in college's office).
In Regents of the University of California v. Rosen, 413 P.3d 656 (Cal. 2018), a UCLA student who had been attacked by another student with a kitchen knife during a chemistry laboratory sued the university and several UCLA employees, alleging that a special relationship existed between her and the university and that the university breached its duty of care by failing to adopt reasonable measures that would have protected her from the attacker's allegedly foreseeable violent conduct. The injured student claimed the attack was foreseeable to the university because the attacker had been treated by the institution for schizophrenia disorder and paranoid thinking several months prior to the attack. The attacker also had engaged in a non-violent physical confrontation with another student, which resulted in his expulsion from campus housing.
The trial court denied defendants' motion for summary judgment, concluding that defendants owed plaintiff a duty of care based on her status as a student or, alternatively, as a business invitee onto campus property. The intermediate appellate court came to the opposite conclusion, holding that “a public university has no general duty to protect its students from the criminal acts of other students.” 193 Cal.Rptr.3d 447, 451 (Cal. Ct. App. 2015).
Given the vocal dissent in the intermediate appellate court's decision, and the press attention the case received, perhaps it was inevitable that the Supreme Court of California would grant review of the case. 364 P.3d 174 (Cal. 2016). In a highly anticipated opinion, the court reversed, holding that “universities do have a legal duty, under certain circumstances, to protect or warn their students from foreseeable violence in the classroom or during curricular activities.” (413 P.3d at 663). Central to the court's decision is recognition that colleges and universities have a special relationship with students “while they are engaged in activities that are part of the school's curriculum or closely related to its delivery of educational services” (413 P.3d at 667).
3.2.2.4 Liability for injuries in off-campus courses. An increasing number of lawsuits seek to impose liability on colleges, universities, and their staff for injuries occurring during off-campus courses. Many graduate programs and an increasing number of undergraduate programs require some form of off-campus internship experience for students. Student teaching is required for students seeking degrees or licenses in education; social work students are typically required to complete a practicum in a social service agency; and students enrolled in health care–related programs may also have off-campus educational requirements. These experiences provide valuable opportunities for student learning but may create liability for a college or university, even if it has no real control over what the student encounters in the off-campus placement.
Liability for activities at an off-campus site can occur in several ways. For example, an institution may be responsible for maintaining the safety of premises it does not own if it schedules a course there. In Delbridge v. Maricopa County Community College District, 893 P.2d 55 (Ariz. Ct. App. 1994), a college offered a course in plant mechanics to employees of the Salt River Project (SRP) on the site of that organization. Although SRP employees performed the instruction, they were considered adjunct faculty of the college, and they were paid by the college. Individuals participating in the course were