A college’s duty to protect its students from foreseeable violence

In October 2009, Katherine Rosen suffered life-threatening injuries when she was attacked in a UCLA chemistry laboratory by a fellow student, Damon Thompson, known to UCLA officials to have mental issues and a history of violence. Thompson had been expelled from university housing and ordered to undergo counseling as a condition of his enrollment that semester. Rosen sued the Regents of the University and several of its employees alleging they had been negligent in dealing with the threat Thompson posed to Rosen and her fellow students.

In 2014, the superior court denied a defense motion for summary judgment. The defendants challenged the trial court's order in a petition for writ of mandate. A divided panel of the 2nd District Court of Appeal, Division 7 granted the petition, the majority holding that universities do not have a duty to warn or protect students from third-party criminal conduct.

The California Supreme Court reversed in March 2018. With its opinion in Regents of U.C. v. Superior Court (Rosen), 4 Cal. 5th 607, the court held college students stand in a "special relationship" with their colleges giving rise to a "duty to use reasonable care to protect their students from foreseeable acts of violence in the classroom or during curricular activities." The special relationship arose from "the unique features of the college environment." The court explained, "While [a university's] primary function is to foster intellectual development through an academic curriculum, the institution is involved in all aspects of student life. Through its providing of food, housing, security, and a range of extracurricular activities the modern university provides a setting in which every aspect of student life is, to some degree, university guided." As a result of these attributes, "colleges have a superior ability to provide ... safety with respect to activities they sponsor or facilities they control."

But the high court left significant questions open for the Court of Appeal to decide. The high court remanded the case to address two additional issues the defendants had raised in their petition: (1) whether the parties' evidence established as a matter of law that the UCLA defendants did not breach their duty of care to Katherine Rosen; and (2) whether various provisions of the Government and Civil Codes shielded UCLA and its employees from liability. The court noted "the appropriate standard of care for judging the reasonableness of the university's actions remains an open question, which the parties are free to litigate on remand."

After calling for further briefing and oral argument, on Dec. 3, the Court of Appeal filed its opinion finding for Rosen in all material respects. Regents of U.C. v. Superior Court, 2018 DJDAR 11577. Writing for a unanimous court, Justice Laurie Zelon concluded "We agree with Rosen that a university's duty to protect students from foreseeable acts of violence is governed by the ordinary negligence standard of care, namely 'that degree of care which people of ordinarily prudent behavior could be reasonably expected to exercise under the circumstances.'" The court rejected the defendants' proposed standard of care, based on the psychotherapist-specific Civil Code Section 43.92, that would require campus officials to act only when faced with a "serious threat of physical violence against a reasonably identifiable victim or victims." "Defendants have provided no explanation why the ordinary standard of care that governs the duty secondary schools owe to their students should not also govern the analogous duty universities owe to their students in the curricular setting."

The Court of Appeal then turned to the question whether the record established, as a matter of law, the defendants had discharged their duty of care to Rosen. "First, they contend[ed] the evidence shows university personnel could not have foreseen that Thompson posed a threat to his fellow students. Second, they assert[ed] that even if a rational jury could find the university was aware of facts demonstrating that Thompson presented a foreseeable threat of harm, the evidence nonetheless shows the university exercised reasonable care in attempting to respond to that threat." Again, the court disagreed.

"[A] reasonable jury could find the university was aware of information demonstrating that Thompson posed a foreseeable risk of violence. The record contains extensive evidence that university personnel were aware Thompson had been continuously experiencing auditory hallucinations and paranoid delusions, all of which involved perceived harassment and insults by other students." "We likewise conclude there is a triable issue of fact whether the university acted reasonably in response to the threat Thompson posed. In particular, as the dissent noted in our prior decision, the evidence suggests there may have been an unreasonable failure of communication and lack of coordination among the various professional teams responsible for responding to situations of the type presented by Thompson." While the defendants might ultimately prevail at trial, "this is not one of those exceptional cases where the question of negligence is properly decided by the court as a matter of law."

Because UCLA is a public university, the Court of Appeal finally needed to consider whether any of the immunities in the Tort Claims Act applied. Defendants had asserted they were immune under Government Code Sections 820.2 and 856.

Section 820.2's "discretionary immunity" did not apply because implementing UCLA's violence-prevention protocols was a "ministerial implementation of that basic policy" to have such protocols and procedures. "Rosen's claim, however, does not challenge the adequacy of the university's safety programs or protocols. Instead, she challenges the manner in which the university and its employees executed those programs with respect to an individual student who Rosen alleges presented a foreseeable threat of harm. These alleged acts and omissions constitute 'subsequent ministerial actions in the implementation of the basic decision.'"

Section 856 immunizes decisions to confine or not to confine a person for "mental illness or addiction." "Rosen's negligence claim, however, does not challenge any university decision regarding Thompson's confinement. Instead, she seeks to impose liability based on other allegedly negligent behavior the university engaged in with respect to Thompson." Section 856 did not apply. Katherine Rosen is entitled to have a jury determine whether UCLA and its employees were negligent in failing to protect her from the threat Thompson posed.

The California Constitution provides students the right to safe classrooms. "Under the holding in Regents, universities and secondary schools have a similar duty to protect their students from foreseeable acts of violence." With its opinion, the Court of Appeal fully implemented the policy considerations behind the duty colleges and universities owe their students while engaged in curricular activities. (The high court noted that the duty "extends to activities that are tied to the school's curriculum but not to student behavior over which the university has no significant degree of control.") Faced with a threat of foreseeable violence, a college or university must act as would a reasonable person under similar circumstances.