Copyright © 2009 Holland & Knight LLP All Rights Reserved

What to Do about Violence on Campus?CCCU International Forum on Christian Higher Education

Nathan A. Adams, IV, Ph.D., M.A., Esq.Partner

Holland & Knight LLPPhone: 850-425-5640

nathan.adams@hklaw.com

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Agenda

• History of campus violence

• Anatomy of the threat

• College liability

– Negligence

– Clery Act of 1990

– ADA and Rehabilitation Act

– Other causes of action

• Solutions

– Enrollment Policies

– Security and crisis plans

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The Headlines are Shocking …

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History of University ShootingsMore Headlines

May 6, 2009

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History of University ShootingsCampus Violence, 1960-09

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History of Campus ViolenceOn Campus Criminal Offenses, 2005-07Non-profit, Liberal Arts Institutions

Source: U.S. Department of Education, 2009

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Anatomy of the Student ThreatThe Secret Service reported these findings about 37 school shootings…

• Incidents of targeted violence at school rarely were sudden, impulsive acts.

• Prior to most incidents, other people knew about the attacker’s idea and/or plan to attack.

• Most attackers did not threaten their targets directly prior to advancing the attack.

• Most attackers engaged in some behavior prior to the incident that caused others concern or indicated a need for help.

• Most attackers had difficulty coping with significant losses or personal failures. Moreover, many had considered or attempted suicide.

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Anatomy of the Student ThreatThe Secret Service Report Cont.

• Many attackers felt bullied, persecuted or injured by others prior to the attack.

• Most attackers had access to and had used weapons prior to the attack.

• In many cases, other students were involved in some capacity.

• Despite prompt law enforcement responses, most shooting incidents were stopped by means other than law enforcement intervention.

Date: May 2002

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Anatomy of the Student ThreatShooter Snapshot

The high profile cases involved these facts:

• Anxiety, depression and suicidal ideation

• Disenfranchised, social out-casted, bullied and grudge-bearing shooter

• If a student, recent school discipline (e.g., expulsion)

• Anti-Christian, anti-Jewish and “goth” subculture

• Pre-incident indicators (i.e., acting-out on blogs)

• Weapons purchases (arms and bombs)

• Easy access to students

• Poor coping skills

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What Liability Do Colleges Have for Campus Violence? Negligence

• Duty of care - arises from:

– Legislative enactment or administrative regulation

– Judicial interpretation

– Duty arising from general facts of the case

• Breach of that duty – where a legal duty exists, a defendant must exercise reasonable care under the circumstances

– Custom and practice in the industry is relevant

• Proximate causation – there must be a direct causal connection between the breach of duty and injury.

• Damages

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NegligenceRule & Exception for Special Relationships

• The general rule is that there is no duty to control the conduct of a third person so as to prevent him from causing physical harm to another unless:

– A special relationship exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct; or

– A special relationship exists between the actor and the other which gives to the other a right of protection.

Restatement (Second) Torts § 315.

• Special relationships include these:

– school-minor student

– employer-employee

– landlord-tenant

– business-invitee.

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Negligence Is There a College-Student Special Relationship?

• Most courts have rejected the university-college student relationship alone as a basis for liability.

• But some jurisdictions recognize a special relationship between a student and university when there are particularly sympathetic facts. For example:

– Schieszler v. Ferrum College, 236 F. Supp. 2d 602 (W.D. Va. 2002) (college had special relationship with student who hung self where, inter alia, college officials were aware that student had emotional problems and indicated intent to commit suicide)

– Shin v. Mass. Institute of Tech., 19 Mass. L.Rptr. 570, 2005 WL 1869101 (Mass. Super. 2005) (university had special relationship with student who committed suicide because university was well aware of student’s suicidal ideation)

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Negligence Duty of Care: Business-Invitee

• Most jurisdictions recognize that a special relationship exists between a business or landowner and its invitees. With respect to universities, students are the invitees.

– Furek v. University of Del., 594 A. 2d 506 (Del. 1991) (college students are invitees, and universities owe them a duty to “regulate and supervise” student activities that are foreseeable and within the university’s control)

– Estate of Butler ex rel. Butler v. Maharishi Univ. of Mgmt., 589 F. Supp. 2d 1150 (S.D. Iowa 2008) (university, as possessor of property where student attended school and where act of violence against student occurred, owed student a duty of care as its invitee)

– Luina v. Katharine Gibbs Sch. N.Y., Inc., 37 A.D. 3d 555, 830 N.Y.S. 2d 263, 216 Ed. Law Rep. 605 (2d Dep’t 2007) (as a property owner/occupier, college had a duty to exercise reasonable care to protect the student from reasonably foreseeable criminal or dangerous acts committed by third persons on its premises)

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NegligenceDuty of Care: Landlord-Tenant

• A university may also be a landlord with a special relationship to its student tenants. Violence which occurs to students in dormitories as opposed to in academic buildings, in dining halls, or walking around campus falls into this category, rather than the business-invitee category. A handful of jurisdictions (e.g., Maryland) have rejected this basis for liability.

– Mullins v. Pine Manor College, 389 Mass. 47, 449 N.E. 2d 331 (1983) (college and an administrator owed a duty to exercise care to protect the well being of their resident students)

– Peterson v. San Francisco Cmty. College Dist., 36 Cal. 3d 799, 205 Cal. Rptr. 842, 685 P. 2d 1193 (1984) (college liable where inadequate lighting near a tenant’s apartment allowed an intruder to break in to the apartment)

– Nero v. Kan. State Univ., 253 Kan. 567, 861 P. 2d 768 (1993) (providing student housing conferred upon the university all the rights and duties of a landlord)

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NegligenceDuty of Care: Contract

• A duty of care may arise by contract. The contract creates the relation out of which grows the duty to use care in the performance of a responsibility prescribed by contract.

– Duarte v. State, 88 Cal. App. 3d 473, 151 Cal. Rptr 727 (Cal. App. 4th Dist. 1979) (claim stated for breach of warranty of habitability in residence contract when state university student was raped and murdered in her residence hall)

– Drake v. Island Cmty. Church, Inc., 462 So. 2d 1142 (Fla. 3d DCA 1984) ), rev. denied, 472 So.2d 1181 (1985) (reinstating complaint that school breached written contract in that teacher assigned to educate her induced child to engage in sexual activity)

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NegligenceDuty of Care: Voluntary Assumption

• General Rule: One who undertakes to act even when under no obligation to do so, thereby becomes obligated to act with reasonable care. See Union Park Memorial Chapel v. Hutt, 670 So. 2d 64 (Fla. 1996).

• One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if

– His failure to exercise such care increases the risk of such harm, or

– The harm is suffered because of the other’s reliance upon the undertaking.

L.A. Fitness Int’l, LLC v. Mayer, 980 So. 2d 550, 560 (Fla. 4th DCA 2008), rev. denied, 1 So.3d 172 (Fla. 2009).

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NegligenceDuty of Care: Voluntary Assumption Examples

• Internships. Nova Southeastern Univ, Inc. v. Gross, 758 So. 2d 86 (Fla. 2000) (since university had control over graduate student’s conduct by requiring her to do mandatory internship and by assigning her to specific location, it assumed correlative duty of acting reasonably in making that assignment)

• Accommodations. Mullins v. Pine Manor College, 389 Mass. 47 (1983) (college undertook a duty to provide students in dormitories with protection from criminal acts of third parties, in this case rape; the jury could have found deficiencies including an observation post too distant from the fence so the intruder could climb over without being detected, exterior gates too easy to scale or open, walls too low to be adequately protective, locks on the doors too easy to pick, too few guards on duty without any method for ensuring they were performing their patrols; single key system for outside and interior doors; no deadbolt, chains or knife guard)

• Transportation. Hinckley v. Palm Bch. County Bd. of County Comm’rs, 801 So. 2d 193 (Fla. 4th DCA 2001) (when county undertook to provide transportation services to student molested by driver it had a duty to protect her from foreseeable harm); McClure v. Fairfield Univ., 35 Conn. L. Rptr. 169, 2003 WL 21524786 (Conn. Super. Ct. 2003) (university liable for drunken shuttle bus driver)

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NegligenceDuty of Care: Does It Extend Off-Premises?

• A college’s duty of care may extend off-premises if school-related. Examples of duty imposed:

– Gross v. Family Servs. Agency, Inc., 716 So. 2d 337, 339 (Fla. 4th DCA 1998), approved, 758 So.2d 86 (Fla. 2000) (internship off-campus where student was sexually assaulted was school-related)

– Rupp v. Bryant, 417 So. 2d 658, 667 (Fla. 1982) (student stated a claim for liability against school for injuries sustained during off-campus hazing by recognized school club)

– Gutierrez v. Dade County Sch. Bd., 604 So. 2d 852 (Fla. 3d DCA 1992), rev. denied, 618 So.2d 208 (Fla. 1993) (school liable for shooting by assailant that occurred a few feet beyond property line)

• Examples of duty not imposed:

– Brown v. N. Carolina Wesleyan College, Inc., 309 S.E. 2d 701, 702 (N.C. App. 1983) (college not liable when non-resident student was abducted from college campus by a third party and raped and murdered off-campus)

– Boyd v. Tex. Christian Univ., 8 S.W. 3d 758, 760 (Tex.App. 1999) (court declined to recognize a special relationship between college and football players or between college and injured student at off-campus event)

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NegligenceForeseeability of Harm

• Relation to Negligence. Foreseeability is both a component of the duty element of negligence and of proximate cause.

– Foreseeability of Zone of Risk: The duty element of negligence focuses on whether the defendant’s conduct foreseeably created a broader “zone of risk” that poses a general threat of harm to others. This is a minimal threshold legal requirement for opening the courthouse doors.

– Proximate Causation. The proximate causation element is concerned with whether and to what extent the defendant’s conduct foreseeably and substantially caused the specific injury that actually occurred. This is part of the specific factual requirement that must be proved to win the case once the courthouse doors are opened.

• Foreseeability and proximate causation are jury questions. The plaintiff must show that there was a greater likelihood or probability that the harm complained of was due to causes of which the defendant was responsible than from any other cause.

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NegligenceForeseeability of Injury - Knowledge of Specific Threat

• Foreseeability may arise based on a school’s knowledge of a specific threat. For example:

– Jesik v. Maricopa County Cmty. College Dist., 611 P. 2d 547 (Ariz. 1980) (reversing summary judgment against community college when student was shot by third party who he reported twice to security guard as threatening him)

– Peterson v. San Francisco Cmty. Coll., 685 P. 2d 1193 (1984) (college had a duty to prevent attempted rape on a stairway in the college’s parking lot where prior attacks happened)

– Schieszler v. Ferrum College, 236 F. Supp. 2d 602 (W.D. Val. 2002) (college liable when student committed suicide after campus police aware of student’s prior attempt merely asked him to sign a statement promising not to harm self)

– Tarasoff v. Cal. Bd. of Regents, 551 P. 2d 334 (Cal. 1976) (college liable when treating psychotherapist failed to warn a third party whom a student patient had threatened)

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NegligenceForeseeability of Injury – Like-Kind General Threat

• Foreseeability may also give rise to a duty based upon the college’s knowledge of a general threat that could endanger students’ safety. It is especially dangerous when a school has knowledge of a harm that is within the “scope of injury” (has a like-kind relationship with the injury) sustained by the plaintiff.

– Duarte v. State, 88 Cal. App. 3d 473, 151 Cal. Rptr 727 (Cal. App. 4th Dist. 1979) (liability arose from rape and murder of student in dorm because university had knowledge of a chronic pattern of violent assaults, rapes, and attacks on female members of the university community)

– Doyle v. Gould, 22 Mass.L.Rptr. 373, 2007 WL 1203567 (Mass. Super. 2007) (Northeastern University not liable for shooting of student in apartments rented by University based on knowledge that complex had been burglarized four times, where there was no evidence of violent crimes taking place there)

– Agnes Scott College, Inc. v. Clark, 243 Ga. App. 619, 616 S.E. 2d 468 (2005) (general crime statistics and student concerns about walking alone in college parking lot at night would not create issue of fact regarding foreseeability of random attack on student in broad daylight in lot)

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NegligenceForeseeabilty of Injury – Constructive Knowledge

• Foreseeability can arise even when school personnel are not actually aware of a risk, as long as the person reasonably should have been aware of the risk.

– Collins v. Sch. Bd. of Broward County, 471 So. 2d 560 (Fla. 4th DCA 1985) (school liable for sexual assault of student in shop class when teacher left room; had teacher been at desk he would have seen the assault)

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NegligenceBreach of the Duty: Standard of Care

• To the extent a defendant has a legal duty, custom and practice of an industry can help define the standard of care the defendant must exercise. See L.A. Fitness Int’l, LLC v. Mayer, 980 So. 2d 550, 558 (Fla. 4th DCA 2008), rev. denied, 1 So.3d 172 (Fla. 2009).

• Example: In the past ten years, courts have said that rental housing owners and managers, as well as tenants, need to become more proactive in making their properties reasonably safe from violent criminals. Consequently, the insurance industry reports that rental housing properties have been successfully sued more often for inadequate security claims than any other type of claim.

See Eichenbaum v. Rossland Real Estate, Ltd., 502 So. 2d 1333 (Fla. 4th DCA 1987) (knowledge by lessees, operators, and owners of shopping mall of prior similar criminal attacks occurring at mall gave rise to duty by them to provide adequate security for customers and employees).

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What Liability Do Colleges Have for Campus Violence? Clery Act

• Reporting requirements. Institutions participating in Federal student aid programs must report campus crime statistics. 20 U.S.C. § 1092(f).

• Campus safety policies. The same institutions must disclose campus safety policies including sexual assault policies. 20 U.S.C. § 1092(f)(8)(A)-(B).

• Crime alerts. Institutions must warn students and employees of crimes on campus “in a manner that is timely and that will aid in the prevention of similar circumstances.” 20 U.S.C. § 1092(f)(3); Havlik v. Johnson & Wales Univ., 509 F. 3d 25, 28 (1st Cir. 2007).

• Daily logs. Institutions that have a police or security department must make, keep, and maintain a daily log, recording all crimes. 20 U.S.C. § 1092(4)(A).

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Clery ActNoncompliance Repercussions

• The Clery Act does not create a private right of action, and it is not supposed to establish the standard of care, but it may influence the standard of care by requiring policies that themselves create the threshold.

• The U.S. Department of Education is authorized to impose civil fines of up to $27,500 per violation on an educational institution that has “substantially misrepresented” the nature of the crimes required to be reported.

• The Department may also limit, suspend, or terminate the institution’s participation in Federal financial aid programs.

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Clery ActProposed Rule Amendments

• Expand list of hate crimes to be reported

• Require statement of policy re: emergency response and evacuation procedure in the annual security report and how it will be annually tested.

• Require immediate notification of campus community upon confirmation of an emergency or dangerous situation and follow-up information “as needed.”

• Missing Student Policy and Procedures. Proposed that these be included in the institution’s annual security report including a missing student notification system for institutions with on-campus housing.

• Publish annual fire safety report with annual security report to campus community.

Source: 74 Fed. Reg. 42395 et seq. (Aug. 21, 2009).

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What Liability Do Colleges Have for Campus Violence? ADA and Rehabilitation Act

• A plaintiff may state a claim for violation of Title II of the ADA by alleging that

– She has a disability

– She is “otherwise qualified” for the benefit

– She was excluded from the benefit on the basis of her disability

• A plaintiff may state a claim for violation of the Rehabilitation Act (which applies to programs receiving Federal funds) by alleging that

– The plaintiff is disabled and otherwise qualified academically

– The defendant owns, leases, or operates a place of public accommodation and receives Federal funding

– The defendant failed to make reasonable modifications that would accommodate the plaintiff’s disability without fundamentally altering the nature of the public accommodation.

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ADA and Rehabilitation Act2008 Amendments

• Expands the class of protected individuals

– The determination of whether an impairment substantially limits a major life activity may be made without regard to the ameliorative effects of mitigating measures such as medication, assistive technology, auxiliary aids or services (excluding eyeglasses or contact lenses), and adaptive modifications

– An individual who has experienced discrimination “because of an actual or perceived physical impairment[,] whether or not the impairment limits or is perceived to limit a major life activity” is regarded as having a disability.

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ADA and Rehabilitation ActPsychiatric Disabilities and Preventive Measures

• Although colleges do not need to serve students who present a direct and imminent threat to self, others or property, because they are “not otherwise qualified,” institutions will need to be careful to distinguish them on the basis of individualized and objective assessment, sound evidence of probable and proximate injury, and consideration of reasonable mitigating policies, practices or procedures.

• Colleges should be willing “to make modifications in order to enable students with disabilities to meet … academic requirements,” like changes in the length of time permitted for the completion of degree requirements, substitution of specific course required for the completion of degree requirements, and adaptation of the manner in which specific courses are conducted.

• An institution is financially responsible for auxiliary aids and services unless it can demonstrate that the cost is an undue burden.

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College LiabilityOther Common Tort Claims Arising from Campus Violence

• When Employees Perpetrate

– Negligent hiring. May arise when college fails to conduct adequate background check on perpetrating employee.

– Negligent retention. May arise when a college fails to protect others from harm after they learn of an employee’s propensity to perpetrate.

– Negligent admission or recruitment. May arise when college failed to exercise reasonable care in admitting a student.

– Negligent supervision. May arise when a college fails to exercise reasonable care when supervising an employee or student.

• Defamation. May arise when false statements of fact about an alleged perpetrator are recklessly or excessively published.

• Strict Liability. May arise when employees or students handle obviously hazardous materials or equipment.

• Invasion of privacy. May arise when backgrounds are investigated.

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College LiabilityOther Causes of Action Arising from Campus Violence

• Sexual harassment. Municipal and state law and …

– Title IX. A college that knows or reasonably should know of sexual harassment against a student must take “immediate and appropriate steps to investigate or otherwise determine what occurred and take prompt and effective steps reasonably calculated to end any harassment…and prevent harassment from occurring again.”

– Title VII. Employment discrimination, harassment, and hostile workplace.

• Violence Against Women Act. 42 U.S.C. § 13981(a). Authorizes a federal civil claim for “victims of crimes of violence motivated by gender.”

• Hazing. Civil or criminal liability under state law may be the basis for an assumed duty. See Furek v. Univ. of Del., 594 A. 2d 506 (Del. 1990) (imposing duty on university when fraternity pledge was scarred by liquid).

• OSHA. Employers must furnish a place of employment free from “hazards that are causing or are likely to cause death or serious physical harm to [its] employees.” 29 U.S.C. § 654(a)(1).

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College LiabilityDamages

• Damages may include:

– Lost compensation

– Pain and suffering

– Wrongful death

– Punitive damages

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You Need a Plan!

• Threat Assessment Team

• Emergency Response Plan

• Emergency mass notification and communication system

• Mental health services for students

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Threat Assessment TeamViolence Prevention

• The TAT is a multidisciplinary team including safety, health, and legal professionals who are trained regarding privacy and information sharing laws such as FERPA and HIPAA

• The TAT

– Adopts a policy outlining how and to whom faculty and staff should refer students who may be threatening

– Educates faculty, staff and students about recognizing and responding to signs of mental illness and potential threats

– Supervises multiple reporting systems to enable the reporting of threatening behavior anonymously and conveniently

• Seek Memorandum of Understandings or Mutual Aid Agreements with

– Mental health providers to provide enhanced access to mental health services

– Law enforcement agencies

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Threat Assessment TeamAttorneys and Campus Security

• A leading campus violence report explains why legal counsel should be consulted in drafting campus security documents and participate in the TAT:

Attorneys can play an integral role in threat assessment and violence prevention and should be involved early in the process of dealing with more severe and credible threats. These professionals are familiar with privacy and confidentiality issues. They can also facilitate obtaining judicial injunctions and Temporary Restraining Orders, and assist in preparing legal documents to handle potentially dangerous persons or situations.

Campus Violence Prevention and Response: Best Practices for Massachusetts Higher Education (June 2008).

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Mass Notification and Communication System Emergency Use Policy

• Emergency notification system (redundant electronic, audio and visual systems)

– The kinds of events that would initiate the system

– Procedure to confirm significant emergency or missing student

– Who is authorized to launch the system

– Procedure to determine the appropriate segment or segments of campus to receive notice

– Procedure to determine content of notice

– Procedure to initiate notification

– Personnel assignments

• Coordination with police, fire and rescue

– Familiarity with the National Incident Management System (NIMS)

– Interoperable communications among response agencies

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Other Recommended StepsSecurity Plan

• Inquire of school applicants about unusual academic histories, criminal records, and disciplinary actions.

• Include public safety as part of the school orientation process

• Conduct annual vulnerability assessments of the campus and regular reviews of the ERP

• Enhance physical security measures

– Repair and replace exterior doors

– Install CCTV cameras and electronic access control systems

– Ensure adequate campus safety staffing

• Drill emergency preparedness

• Establish a trained behavioral health Trauma Response Team

– Plan for victim services in the aftermath of a tragedy

– Develop communications protocols

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SolutionsFollow the Plans

• The worst plans are the ones not followed.

– Broward County Sch. Bd. v. Ruiz, 493 So. 2d 474 (Fla. 4th DCA 1986) (school’s own recognition of need for supervision in cafeteria area after school as evidenced by adoption of comprehensive system of supervision and patrols designed to prevent students from being left alone on campus was evidence on issue of duty to provide supervision when student was assaulted)

– Rupp v. Bryant, 417 So. 2d 658, 669 (Fla. 1982) (“Not only was the harm foreseeable, but the school had actually anticipated it through regulations which it failed to follow.”)

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Questions?

• Nathan “Nate” A. Adams, IV

Partner, Holland & Knight, LLP

– 850-425-5640

– nathan.adams@hklaw.com

• This material is for informational purposes only. It is not intended to give specific legal or risk management advice, nor intended to address all possible risk management exposures or solutions. If you would like specific legal advice for your institution, you should retain the services of qualified counsel.