Missing the Mark on Duty, Again. Regents v. Superior Court — Goldberg & Zipursky

Post by John C. P. Goldberg & Benjamin C. Zipursky

The California Supreme Court has an iconic status in American tort law. It is, after all, the Court that gave us strict products liability. It also led the charge to liberate negligence law from no-duty rules that barred various claims against negligent drivers and landowners.

Perhaps the best known of the Court’s duty decisions is Tarasoff v. Board of Regents (1976). A Berkeley graduate student (Poddar) became obsessed with a young woman (Tarasoff). Eventually, Poddar confronted Tarasoff at her parents’ home and stabbed her to death. The Court held that, although Tarasoff lived off campus and was not an enrolled student, because Poddar had talked about killing Tarasoff with his therapists, they were obligated to take steps to protect her. Like most other Torts professors, we teach Tarasoff as emblematic of the California Court’s then-progressive, pro-plaintiff disposition, and its role as a trailblazer for courts around the country.

Imagine our surprise, then, to read a recent California Court of Appeal decision ruling that, so far as California law is concerned, universities owe no duty to their students to protect them against attacks by other students. More jarring still was that this case—Regents v. Superior Court—featured both another horrific knife attack and the same defendant as in Tarasoff: the Regents of the University of California. As Justice Perluss argued in a persuasive dissent, the Court of Appeal’s holding that UCLA owed no duty of care to its student is untenable. The core issue in the case is not duty, but breach (and perhaps causation).  Breach, of course, is a question for the jury.  

According to the facts as summarized in the Court of Appeal’s opinion, during the 2008-09 academic year, UCLA faculty, administrators, police, and counselors had extensive contact with Damon Thompson, a student. Thompson had repeatedly reported to professors, teaching assistants, and others that he was angry and frustrated because fellow students, especially students in his dormitory, had been harassing, persecuting, and threatening him. On one occasion, Thompson indicated that, if the university did not discipline those whom he perceived to be mistreating him, the situation would “escalate” and cause him to “act[] in a manner that will incur undesirable consequences.” On another, Thompson reported that he had been advised by his father that he was entitled to “hurt” those who were tormenting him, though he also indicated that he would not to act on that ‘advice.’ 

A February 2009 examination at UCLA’s hospital determined that Thompson suffered from paranoid delusions and was possibly schizophrenic. Thompson agreed to take anti-psychotic medication and to attend counseling sessions with school psychologists.  In one session, he informed a university psychiatrist that he had experienced general “ideations of harming others,” but had never formulated a plan to harm anyone in particular. Soon thereafter Thompson stopped taking his medication, after which he was involved in a physical altercation with another student. In light of that incident, Thompson was barred from UCLA housing and required to attend therapy sessions. Thompson complied, but continued to display paranoid behavior—particularly with respect to fellow students in a chemistry lab—which behavior was reported to UCLA counselors. In October of 2009, while working in the lab, Thompson repeatedly stabbed Katharine Rosen. Rosen survived, though only because she was quickly transported to a hospital where she remained for a substantial time in intensive care.

Rosen’s lawsuit claims that UCLA was responsible for her injuries because they were negligent in dealing with a student whom they knew to suffer from a serious and potentially dangerous mental illness. UCLA’s principal legal response was to deny that it had any duty to protect Rosen from violence at the hands of another student. The school’s response is not surprising. “No affirmative duty” is the general rule in every jurisdiction, including California—though as Tarasoff indicates, the rule has important exceptions—and negligence defendants routinely make no-duty arguments in an effort to have suits dismissed prior to being heard by juries. Moreover, the University was understandably keen to obtain a broad rule against liability arising out of on-campus violence. Still, it is one thing for defense lawyers to make an argument. It is another thing for a court to accept it.

When we say it is untenable for the Court of Appeals to rule that universities owe their students no duty to take any steps to protect them from violence, we speak not only as experts in negligence law and as parents of college students. We also speak as former occupants of administrative positions in law schools. It was our understanding that university administrators faced with credible information about a potentially dangerous student must take such information seriously, and must do so because of the school’s duty to its students and others. Who, if not the university, is going to take responsibility for protecting community members against what is, unfortunately, an increasingly common and reasonable fear on campus? To be sure, police can play a role, but even police typically depend on administrators’ awareness of potential threats.

To their credit, UCLA’s staff members were by no means indifferent to their duties. Indeed, they took a number of measures to address Thompson’s behavior and his underlying psychiatric condition.  Rosen’s suit argues that UCLA was nonetheless negligent because it could and should have done more. The appropriate way for UCLA to answer this charge—if it can be answered—is to show that it fulfilled its duty by taking reasonable steps to manage the situation. (Negligence law does not require a defendant to prevent harm, but rather to take reasonable measures to prevent harm.) Needless to say, the resolution of this issue—the issue of breach—requires a clear grasp of the facts about who knew what when, what steps were taken, and what steps were not taken. California law, like that of every state, calls for this inquiry to be submitted to a jury. And that is exactly what the trial judge was going to do before the Court of Appeal rendered its no-duty ruling.

To be fair to the Regents court, prior Court of Appeal decisions have suggested that a university owes no duty of care to protect its students from certain dangers. In Baldwin v. Zoradi (1981), underage students got drunk on campus then raced their cars. Plaintiff, a passenger in one of the cars, was injured when they crashed. The Court of Appeal held that the university owed no duty to the plaintiff to take steps to prevent the students from getting drunk and then driving.  In Crow v. State (1990), the court rejected a claim against a university based on the plaintiff-student having been assaulted by a drunken member of the school’s football team. And in Tanja H. v. Regents of University of California (1991), the university-defendant successfully argued that it had no duty to protect a student against fellow students—here, football players and fellow fraternity members—who raped her in a university dormitory. 

While seemingly impressive, a review of these precedents indicates that Regents was indeed wrongly decided. First, Regents is far closer to Tarasoff than to any of these cases. In Regents, the gist of the complaint is not that the University failed to do enough to enforce general policies (such as those against underage drinking), but rather that the University had reason to believe that a particular student posed a serious danger to his fellow students and other members of the university community.

Second, although each of the other decisions was decided within the last 35 years, all reflect an outdated conception of the relationship of a university to its students. The judges who decided Baldwin, Crow and Tanja H. seem to have taken the view that the plaintiffs in those cases were trying to have it both ways,  simultaneously demanding to be treated as adults (when it comes to drinking and sex) and to be treated like children (who need protection from each other). If students are to have the rights of adults, the Baldwin court reasoned, it is necessary that they learn for themselves the “responsibilities” concomitant with those rights—a lesson that (according to the court) could not be achieved if universities are held to a duty to protect students from intoxication-related injuries. 

Now consider two passages from Tanja H. (written, again, in 1991!):

College students are generally young adults who do not always have a mature understanding of their own limitations or the dangers posed by alcohol and violence. However, the courts have not been willing to require college administrators to reinstitute curfews, bed checks, dormitory searches, hall monitors, chaperons, and the other concomitant measures which would be necessary in order to suppress the use of intoxicants and protect students from each other. ….

As campuses have, thus, moved away from their former role as semi-monastic environments subject to intensive regulation of student lives by college authorities, they have become microcosms of society; and unfortunately, sexually degrading conduct or violence in general—and violence against women in particular—are all too common within society at large. College administrators have a moral duty to help educate students in this respect, but they do not have a legal duty to respond in damages for student crimes.

 Tanja H. is striking for many reasons. First and foremost, we know today that the court’s laissez-faire attitude toward on-campus sexual misconduct is unsustainable. There is far too much evidence of widespread sexual assault for courts to dismiss out of hand the responsibility of universities to deal with it.  And, of course, the Department of Education and the Justice Department have interpreted federal anti-discrimination law to require universities to take measures to reduce the incidence of sexual assault. 

Second, and relatedly, there has been a fundamental change in mores and policies since the time of Baldwin and Tanja H. Even if one were to assume that the black-and-white thinking expressed in those decisions—chaperons, curfews, and bed-checks or nothing at all—was plausible in 1991, it is patently implausible today. College administrators, counselors, healthcare professionals, and campus police plainly recognize a wide range of student vulnerabilities and needs, and students’ parents expect colleges to play a caretaking role. A university administration could not today think it is acceptable to permit their campus blue-light security system to fall into disrepair. To do so would be to drop the ball on student safety.

It is worth noting (as did Justice Perluss’s dissent) that, in a 2006 decision, Avila v. Citrus Community College Dist., the California Supreme Court expressly held that colleges and universities have a duty to protect their students. Avila’s significance for Regents should not be overstated. It involved a very different scenario. (The plaintiff, who was hit by a pitch while playing for his college baseball team, sued both his college and the opposing team’s college, alleging that the opposing team’s pitcher had ‘beaned’ him intentionally, and that both schools were responsible for the pitcher’s misconduct: the Court held that a college that hosts an athletic event is under a duty to its students, and to students of competitor schools, to refrain from acting in a way that adds to the inherent risk of injury associated with the event, though it also concluded that the plaintiff had failed to prove a breach of this duty.) Moreover, the Avila Court mentioned in passing that it had “no quarrel” with Baldwin or Crow. Still, Avila, like Tarasoff before it, undercuts the view that colleges owe no duties to take steps to protect students from injuries resulting from student misconduct.

Even assuming Baldwin, Crow, and Tanja H. remain good law in California, all three concern duties to control the conduct of putatively responsible young adults who were under the influence of alcohol that they had voluntarily consumed.  Regents is entirely different.  Rosen’s claim rests on the recognition of a duty to take care that a student whom it knows (or should know) is suffering from a dangerous psychiatric condition does not injure other members of the academic community. For this sort of risk, the university has no basis for supposing that students can adequately take responsibility for themselves. Because it involves a duty to exercise care with regard to the potential violence of a mentally ill student, Regents plainly resembles Tarasoff. Tarasoff’s duty to warn is limited to identifiable victims.  And, although the Superior Court’s opinion denying defendants’ summary judgment motion, as well as Justice Perluss’s dissent, suggest that there was some evidence establishing that Rosen was an identifiable victim, the Court of Appeal concluded that such evidence was lacking. But the principal complaint in Regents is not that the defendants failed to warn Rosen, but that they negligently managed the risk presented by Thompson.  Doctrinally, Regents is in fact a far stronger case than Tarasoff, for while both Thompson and Rosen were UCLA students, the victim in Tarasoff was, as noted above, not a student.

In an earlier posting, we discussed a decision by the Second Circuit Court of Appeals—Munn v. Hotchkiss—which certified to the Connecticut Supreme Court the question of whether a prep school owes a duty to take care to protect its students from being injured or contracting illnesses while on a school trip. There, we expressed astonishment that the Second Circuit thought the duty question was sufficiently close that it should be sent to the state court.  If Munn was puzzling, Regents—coming from the California courts, and concerning a risk of on-campus violence by a student known by UCLA’s staff to be dangerous—is positively dumbfounding.

Taking a broader perspective—one not focused solely on the right answer to the duty question so far as the law is concerned—we of course see what is going on. The Second Circuit in Munn was no doubt affected by the size of the jury’s award ($41.5 million) which could be ruinous to even the wealthiest private schools. While the California Court of Appeals did not have a jury verdict before it in Regents, it is hardly surprising that an appellate court in California would be inclined to protect the coffers of the state’s famous and famously strapped university system. And even a glance at the record shows that UCLA administrators were facing a difficult situation in dealing with a student who was both dangerous and mentally disabled. The court was undoubtedly nervous about permitting a jury’s hindsight to determine what ought to have been done, about the need to ensure that universities are open to students with mental disabilities, and about the need to protect state universities from crushing liability.  

We are not so sanctimonious or narrow-minded as to believe that legal decisionmakers should ignore these sorts of considerations. The problem, instead, is when and how they should figure into decisions. A “no-duty” decision does something more than generate particularly strong protection against liability. If says to all those who benefit from it that the protection of persons such as the plaintiff from harm is not their responsibility.  If Regents holds up, university faculty and administrators will be entitled to claim that student-on-student violence—outside the domain of sexual violence, to which federal law requires them to attend—is not their problem. If there are legitimate worries about ‘too much’ liability, a variety of options are open to California’s legislature. Some states, for example, permit recovery against public schools and universities only upon proof of gross rather than simple negligence. (So far as we can tell, in Regents, UCLA has a strong argument for “no gross negligence as a matter of law.”)  Such is not, however, the current law of the California.

The Regents court’s mistake in ruling against Katherine Rosen was, in the end, a failure to understand what “duty” in negligence law is about. Language that we quoted above from Tanja H. epitomizes where the Regent court also went wrong: “College administrators have a moral duty to help educate students [about violence against women], but they do not have a legal duty to respond in damages for student crimes” (emphasis added). The duty question obviously bears on whether damages will be paid, but it is not about damages. As Chief Judge Cardozo famously wrote, it is about “the orbit of danger as disclosed to the eye of reasonable vigilance.” The risks presented to other members of a university community by a student known to be dangerously unstable clearly fall within “the eye of reasonable vigilance.”  And that is exactly why UCLA owed Rosen (like all of its students) a duty to take due care that Damon Thompson not injure her.  Perhaps UCLA did take due care, but that is for a jury to decide.

It is both startling and sad that, almost forty years after Tarasoff, in an era rife with campus violence, a California court would think it acceptable to hold that a university has no duty to protect its students from the criminal acts of other students. Rosen’s attorneys apparently plan to petition the California Supreme Court to review the Court of Appeal’s decision. The high court should grant the petition and reverse the lower appellate court’s decision.