Loco Parentis Leaves College

In recent years, on- and off-campus shootings and violence have occurred with increasing frequency. These tragic rampages raise a crucial legal question: When is a school liable to a student for injuries suffered at the hands of another?

Whenever a person is seriously injured, litigation usually follows in one form or another. Students who are injured by classmates, school personnel, or outsiders routinely seek compensation in court from the perpetrators - and sometimes from the school itself. In the latter circumstance, the asserted causes of action often include negligence and negligent supervision. The cornerstone of these allegations is an alleged duty owed by the educational institution to the injured plaintiff. Indeed, many student plaintiffs assert the common law in loco parentis doctrine - Latin for "in the place of the parent" - to support their liability claims.

K-12 Cases
Generally, there is no duty to control the conduct of another or to warn those endangered by such conduct because the common law is reluctant to impose liability for nonfeasance. An actionable duty, however, may arise from a "special relationship" existing between the parties. For example, parents have a common law duty to supervise and control their children's conduct. (Hoff v. Vacaville Unified Sch. Dist., 19 Cal. 4th 925, 933-34 (1998).)

California courts also recognize that the special relationship between school personnel and their minor students creates a common law duty to supervise or control those students so that they do not harm their classmates and others. In the Hoff case cited above, the state Supreme Court explained that "[t]he relationship between school personnel and students is analogous in many ways to the relationship between parents and their children. At common law, school officials are said to stand in loco parentis, in the place of parents, to their students, with similar powers and responsibilities." (Hoff, 19 Cal. 4th at 935; see also Austin B. v. Escondido Union Sch. Dist., 149 Cal. App. 4th 860, 874 (2007) (quoting Hoff).) Courts have consistently ruled that the duty owed by school personnel to off-campus nonstudents cannot exceed the scope of the duty owed by parents to third parties.

Colleges and Universities
As every parent knows, there are big differences between having kids in grade school and sending them off to college. Not only are college students older, they also usually live away from home and are far removed from daily parental supervision. Given that reality, courts across the country have rejected the use of in loco parentis doctrine in actions against colleges and universities.

A leading precedent decided 35 years ago best illustrates the modern approach to the role of this doctrine in claims against colleges and universities. The Pennsylvania case involved two college sophomores (Bradshaw and Rawlings) who drank beer at an annual class picnic held off campus. Driving back to school, an intoxicated Rawlings lost control of the vehicle and struck a parked car - in the accident, passenger Bradshaw sustained a cervical fracture and was paralyzed. After identifying the competing interests implicated by the student-college relationship, the Third Circuit held that an in loco parentis duty was not imposed on institutions of higher education. The court observed: "There was a time when college administrators and faculty assumed a role in loco parentis" to the students, but the "campus revolutions of the late sixties and early seventies were a direct attack by the students on rigid controls by the colleges." These upheavals succeeded to the point that now "[c]ollege administrators no longer control the broad arena of general morals," and students have "demanded and received satisfaction of their interest in self-assertion in both physical and mental activities, and have vindicated what may be called the interest in freedom of the individual will." (Bradshaw v. Rawlings, 612 F.2d 135, 139-40 (3rd Cir. 1979), cert. denied, 446 U.S. 909 (1980).)

The Bradshaw court also explained that the change in the student-school relationship occurred because "society considers the modern college student an adult, not a child of tender years." (Bradshaw, 612 F.2d at 140.) It held that "it would be placing an impossible burden on the college to impose a duty" on it under the circumstances and Pennsylvania law. (612 F.2d at 142.) The appellate panel reversed a jury verdict against the college and directed that a judgment be entered in the school's favor.

Twelve years after the Bradshaw decision, another court explained that the "recent trend in the case law is against finding an in loco parentis relationship between colleges or universities and their students." (Hartman v. Bethany Coll., 778 F. Supp. 286, 293 (N.D. W.Va. 1991).) In Hartman, a 17-year-old freshman at a private college was assaulted off campus by two nonstudents whom she met while drinking at an off-campus bar frequented by faculty and students. She filed a claim for negligence against the college.

The Hartman court noted: "Students do not expect the college to lead them through their college years protected from the outside world." (Hartman, 778 F. Supp. at 292.) It held that as a matter of West Virginia law, "the doctrine of in loco parentis does not apply between a college and [a] seventeen-year-old college freshman." (778 F. Supp. at 295.) "It is not reasonable to conclude today that seventeen-year-old college students necessarily require parental protection and supervision," the court further explained. "If they did, society might place many more limitations upon the ability of a minor to attend college." (778 F. Supp. at 294.)

Moreover, the court found that "it is simply not practical to require a college to supervise the activities of its students beyond campus boundaries" because it "has neither the staff nor the resources necessary for such a herculean task." (778 F. Supp. at 292.) The court granted summary judgment for the college.

Alcohol and drug use tend to permeate these cases. In another Pennsylvania lawsuit, an inebriated 19-year-old sophomore at a private university fell and was injured while walking home alone after attending several fraternity parties on campus. She alleged that the university breached its duty to monitor such parties. (Booker v. Lehigh Univ., 800 F. Supp. 234 (E.D. Pa. 1992), aff'd 995 F.2d 215 (3rd Cir. 1993).) However, the court, following the Bradshaw rationale, held that the university's social policy created no special relationship between the plaintiff and the school. It specifically rejected the common law duty in loco parentis since "Pennsylvania imposes no duty upon its colleges to supervise private social functions on their campuses to ensure that no underage drinking occurs." (800 F. Supp. at 241.) The Booker court granted summary judgment for the university, concluding that it rightly assumed that "adult students were responsible enough to make their own decisions" and it was "not responsible for the indiscretions and poor judgment of one of its underage adult students." (800 F. Supp. at 241.)

In yet another instance, a 15-year-old student attending a public university in Alabama on scholarship brought a Title IX action against the university based upon its alleged failure to protect her from her own misconduct. (Benefield ex rel. Benefield v. Bd. of Trs., 214 F. Supp. 2d 1212 (N.D. Ala. 2002).) The plaintiff lived in an on-campus dormitory and she drank alcohol, took drugs, engaged in sexual activities, stopped attending classes, and used her rent and meal money to finance her addictions. The court ruled that she had failed to state a valid Title IX claim for student-on-student harassment sufficient to constitute discrimination. The court also held that the university did not have an in loco parentis relationship with the girl even though she was only 15: "[C]olleges are entitled to make an assumption that each and every student attending the institution is mature enough to decide whether to attend class, with whom to socialize, and what their moral standards will be." (214 F. Supp. 2d at 1223.)

The court concluded that "state universities often have thousands of students, if not tens of thousands. Placing an obligation on a university to check dorm rooms, prevent underage sex, underage drinking, and all use of illegal drugs, or allow Title IX liability is simply to open the courts to the floodgates of litigation, not to mention of questionable legality." (Benefield, 214 F. Supp. 2d at 1227.) Not surprisingly, the court granted the school's motion to dismiss.

California Cases
The foregoing trend in case law has taken root in California.

In one illustrative case decided shortly after Bradshaw, three intoxicated students drove their cars in an off-campus "speed contest" following an on-campus drinking party at a public university dormitory. (Baldwin v. Zoradi, 123 Cal. App. 3d 275 (1981).) The plaintiff was rendered a quadriplegic when the car in which she was riding, driven by a classmate, went off the highway and overturned. She brought an action against the student drivers and the university under several theories, including negligence. The court of appeal concluded that the university did not owe a duty to the plaintiff for her off-campus injuries, which arose from voluntary, underage, on-campus drinking. Following Bradshaw, the court determined that the in loco parentis doctrine did not apply in higher education. Since the "turbulent" 1960s, it held, "California colleges and universities have been at the forefront of extension of student rights, with a concomitant withering of faculty and administration omnipotence." (123 Cal. App. 3d at 288.)

The court also noted that "the authoritarian role of college administrators is gone. Students have demanded rights which have given them a new status and abrogated the role of in loco parentis of college administrators." (Baldwin, 123 Cal. App. 3d at 287.) The appellate panel specifically cited the difficulty of policing a modern university.

Nine years after Baldwin, another California appeals court held that a publc university wasnot responsible for the injuries suffered by the plaintiff student when he was punched and kicked by an intoxicated classmate at a keg party in an on-campus dormitory. (Crow v. State of Calif., 222 Cal. App. 3d 192 (1990).) The court found no "special relationship imposing a duty" on the university for the student's injuries arising from voluntary, underage, on-campus drinking. (222 Cal. App. 3d at 209.) The opinion contrasted this to high schools, which have mandatory attendance, where school officials are directly in charge of the students and their environs, and where minors are too immature to exercise prudent judgment.

The trend continued in a case where a student was punched in the jaw by an opponent during an indoor intramural soccer game, on campus at a public university. (Ochoa v. Calif. State Univ., Sacramento, 72 Cal. App. 4th 1300 (1999), disapproved on other grounds in Avila v. Citrus Cmty. Coll., 38 Cal. 4th 148, 160 fn. 5 (2006).) The court said that the university did not owe a duty to the plaintiff arising from the voluntary, school-sponsored and -organized intramural sporting activity. "Unlike high school students," it explained, "adult college students attend school and participate in school activities voluntarily" and "college administrators have abandoned in loco parentis supervision of adult students' ... activities." (72 Cal. App. 4th at 1305.)

In 2003, the principles established in Baldwin, Crow, and Ochoa were extended beyond voluntary activities to cover mandatory class activities at a public college. (Stockinger v. Feather River Cmty. Coll., 111 Cal. App. 4th 1014 (2003).) In that case, a student working off campus on a class assignment was rendered a paraplegic when she fell out of a classmate's pickup truck. The court held that the college owed no duty to the plaintiff and that her reliance "on the duty schools owe to elementary and high school students is unavailing, because college students are treated differently." (111 Cal. App. 4th at 1032 (emphasis original).) The court stressed that "[c]ollege students are adults who, unlike children, are able to make their own responsible decisions about their own" activities. (111 Cal. App. 4th at 1031.)

Back in 1981, Baldwin explicitly stated that it was "on the cutting edge of the tort law" by rejecting the in loco parentis doctrine in higher education. (Baldwin, 123 Cal. App. 3d at 295.) Twenty-five years later, the California Supreme Court acknowledged in Avila that these cases mark the elimination of the in loco parentis doctrine in actions against colleges and universities. (38 Cal. 4th at 158.) Avila stated that public schools have a duty to supervise students, but that "with the demise of the in loco parentis doctrine, colleges and universities do not owe similarly broad duties of supervision to all their students." (38 Cal. 4th at 158.)

Recent Cases
Two years ago, a court held that a public university and its football coach were not responsible for injuries that a student football player suffered when he was punched and kicked by a teammate while watching football films on campus. (Sanford v. Long, 2012 WL 874678 (Cal. App.).) The appellate panel recognized that it was "clear that universities and their officials generally do not owe their students a duty to supervise the actions of other students." (2012 WL 874678 at *6.)

In 2013, the parents of two USC graduate students from China who were killed during an off-campus robbery asserted claims against the private university. (Qu v. Univ. of So. Calif., 2013 WL 6192386 (Cal. App.).) The court held that the university did not owe a duty to the students or their parents for the lethal attack. Following Crow, Qu recognized that "California courts have generally refused to find that schools owe a duty to protect adult students from third party criminal conduct. (2012 WL 6192386 at *2.)

Given this consistent chain of appellate decisions, it is safe to say that we have witnessed the death of in loco parentis in actions against colleges and universities.

New Reality
The evolution of the law in this area has resulted in serious procedural changes for these tort cases. Years ago (and well prior to the Bradshaw decision in 1981), cases involving incidents like those discussed above would consume considerable trial time. However, in each of the cited cases the duty issue was resolved as an issue of law, via either a demurrer, a motion to dismiss, or a motion for summary judgment.

For this kind of tort litigation, then, a school's duty comes first: Without it, plaintiffs suing their schools will be expelled from court, but of course they still can pursue claims against the actual tortfeasors.

Kent A. Halkett is a litigation partner in the Los Angeles office of Musick, Peeler & Garrett.

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