Opinion
No. CV-03-0484661S
January 23, 2009
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT (#236)
This case arises out of a tragic accident. At approximately 1:00 a.m. on November 10, 2001, 18-year old Steven Pawlowski (Pawlowski), a freshman at Quinnipiac University in Hamden, Connecticut left a party at a private off-campus residence in an intoxicated state and was struck by a motor vehicle while crossing a street mid-block. The collision resulted in Pawlowski's death. His parents, Robert S. and Joan Pawlowski (plaintiffs), were appointed administrators of his estate and subsequently brought this action. In the fifth and sixth counts of the second amended complaint filed on March 17, 2006, the plaintiffs allege negligence and recklessness on the part of Quinnipiac University (university). The university has moved for summary judgment on these counts claiming that it had no duty "to protect its students while those students engage in private, off-campus activities and, further that there is no genuine issue of fact as to any breach of duty, should one exist . . ." (Motion for Summary Judgment, #236.)
"Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989); see Practice Book § 17-49. "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007).
I.
The conceded undisputed facts pertinent to this motion are as follows: Pawlowski was a freshman at Quinnipiac University, a private university located in Hamden, Connecticut. During the evening of November 9, 2001 and into the early morning hours of November 10, 2001, a party was held off campus at a residence located at 3327 Whitney Avenue, Hamden, Connecticut. All but one of the residents of 3327 Whitney Avenue were current Quinnipiac University students. All but one of the residents also had a past or present affiliation with the university's officially recognized chapter of the Delta Sigma Phi fraternity (DSP). Beer and alcohol were served at the party.
At oral argument, the court provided a list of facts to counsel for both sides and they concurred that those facts, which are recited above, were not in dispute. September 8, 2008 Transcript p. 3.
Pawlowski attended the party. At approximately 1:00 a.m. on November 10, 2001 he left the party intoxicated, with a blood alcohol level of .19%, and while crossing Whitney Avenue mid-block was struck by a motor vehicle driven by Ryan DePaolo. Pawlowski died as a result of the injuries he sustained.
The university issued a Student Handbook (Handbook) to students enrolled for the 2001-2002 school year. The Handbook had a specific alcohol policy which, among other things, prohibited "purchase, possession or consumption, regardless of location, of beer, wine or distilled spirits by person under age of 21." The policy also provided that students over the age of 21 "may not distribute, serve or procure alcohol to/for minors." While the policy in general regulated consumption of alcohol on campus, in university-owned or leased residences, and in athletic fields and their adjacent areas such as parking lots, the policy contained the following specific prohibitions: "The consumption and serving of alcoholic beverages at organized social functions that are held off campus and sponsored by university student clubs or organizations is strictly prohibited to those under the age of 21." "Open bars are not permitted at any function or event sponsored by any student organization or group affiliated with Quinnipiac. This includes events held both on and off campus."
The Handbook also had a separate section entitled "Statement of Students' Responsibilities," which specified that students who violated the university's rules and regulations as well as any "specifically stated polices as written in the Student Handbook," such as the alcohol policy, could be subject to disciplinary action within the University Judicial System. In the section of the Handbook that explained the student judicial system, the university reserved "the right to address issues with students who live off-campus and are involved in activities on and off campus that may endanger the health, safety and welfare of Quinnipiac students [and reserved] the right to review and address incidents that occur off campus in which Quinnipiac students are involved. Behavior which impacts the institution will be addressed through the university's judicial system."
In the fall of 2001, the DSP chapter was a group affiliated with the university and a recognized student organization. There had been problems in the past when DSP members had hosted off-campus parties where alcohol was served to persons under the age of 21. In the fall of 2000, university representatives met with eight members of DSP and warned them about hosting parties where alcohol was served to minors. Two of those individuals, Christopher Thoman and Conor Melville, are defendants in this case.
II.
"The existence of a duty of care is a prerequisite to a finding of negligence." Gomes v. Commercial Union Insurance Co., 258 Conn. 603, 614, 783 A.2d 462 (2001). "The existence of a duty is a question of law . . ." Mendillo v. Board of Education, 246 Conn. 456, 483, 717 A.2d 1177 (1998). "If a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384-85, 650 A.2d 153 (1994). "[A] count based on reckless and wanton misconduct must, like an action in negligence, allege some duty running from the defendant to the plaintiff." Sheiman v. Lafayette Bank Trust Co., 4 Conn.App. 39, 46, 492 A.2d 219 (1985).
"[T]he test for the existence of a legal duty of care entails (1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case . . . The first part of the test invokes the question of foreseeability, and the second part invokes the question of policy." (Citations omitted; internal quotation marks omitted.) Mendillo v. Board of Education, supra, 246 Conn. 483-84.
The plaintiffs assert that the university assumed a protective duty towards Pawlowski, a student under the age of 21, either to prevent the occurrence of the specific party he attended on November 9 and 10, 2001 or to stop him from entering the residence where the party took place. They maintain that the duty arose as result of the alcohol policy promulgated in the Handbook, the university's reservation of the right to address off-campus student behavior that "may endanger the health, safety and welfare of Quinnipiac students," and the university's specific knowledge of past conduct by members of DSP in hosting off-campus parties at which alcohol was served to minors. The university argues that it did not assume a duty to Pawlowski as a result of its policies and practices, it did not engage in any conduct that made him more vulnerable, it had no ability to control activities occurring in an off-campus residence and that to impose a duty on it to control the off-campus activities of students is inconsistent with public policy.
The plaintiffs also maintain that a duty arose because the party was a fraternity sponsored activity, a fact disputed by the university. The court's analysis of the issue of duty would be the same even if that fact were not in dispute.
The plaintiffs rely exclusively on Restatement (Second) of Torts § 323 (1965) as the source of the duty here. The scope and nature of the duty created under this section has not been addressed in any detail by either the Connecticut Supreme Court or the Appellate Court, but courts in other jurisdictions have explored its parameters. Under § 323, "[i]f a person voluntarily assumes a duty or undertakes to render services to another that should have been seen as necessary for her protection, that person may be liable for harm caused because of the negligent performance of his undertaking." Thorson v. Mandell, 402 Mass. 744, 748, 525 N.E.2d 375 (1988); see Restatement (Second) of Torts § 323, comment a. However, the negligence must either increase the risk of harm to that person, § 323(a), see Soehard v. St. Vincent's Medical Center, 8 Conn.App. 6, 10-11, 510 A.2d 1367 (1986), or induce reliance, § 323(b), thus placing the person in a more vulnerable position than [the person] would have been in had defendant done nothing." Heard v. New York, 82 N.Y.2d 66, 623 N.E.2d 541, 603 N.Y.S.2d 414 (1993). See Mullins v. Pine Manor College, 389 Mass. 47, 53-54, 449 N.E.2d 331 (1983).
Restatement (Second) of Torts § 323, Negligent Performance of Undertaking to Render Services, provides: "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
(a) his failure to exercise such care increases the risk of such harm, or
(b) the harm is suffered because of the other's reliance upon the undertaking."
"Section 323 is an exception to the general rule that affirmative duties of protection do not exist." Turbe v. Government of Virgin Islands, 938 F.2d 427, 431 (1st Cir. 1991). Thus, to hold a defendant liable under § 323(a) it must be reasonably foreseeable that a defendant's actions affirmatively increased the risk of physical harm to a plaintiff. Claims that a defendant failed to take protective measures do not suffice. Jain v. State, 617 N.W.2d 293, 299 (Iowa 2000). Similarly, to hold a defendant liable under a theory of detrimental reliance pursuant to § 323(b), it must be reasonably foreseeable that the plaintiff "would rely upon the defendant's continued provision of services necessary for the plaintiff's protection." Turbe, supra, 938 F.2d 431. Thus, a plaintiff must show "actual or affirmative reliance, i.e., reliance based on specific actions or representations which cause a person to forego other alternatives of protecting themselves." (Internal quotation marks omitted; citations omitted.) Jain v. State, supra, 617 N.W.2d 299; see Wissel v. Ohio High School Athletic Ass'n., 78 Ohio App.3d 529, 539-41, 605 N.E.2d 458, 464-66 (1992).
In the absence of affirmative conduct on the part of a university, courts have been reluctant to find that negligent administration of a university's rules or policies gives rise to an enforceable duty. See CT Page 1872 Guest v. Hansen, No. 06-CV-0500, 2007 U.S.Dist. Lexis 92780 (N.D.N.Y. 2007) (university staff's acquiescence or tacit permission allowing students to engage in prohibited conduct insufficient); Rothbard v. Colgate University, 235 App.Div.2d 675, 652 N.Y.S.2d 146, 148 (N.Y.App.Div. 1997) (handbook prohibition on underage drinking insufficient without more); Booker v. Lehigh University, 800 F.Sup. 234, 240 (E.D.Pa. 1992) (university's social policy re alcohol consumption insufficient); cf. University of Delaware v. Whitlock, 744 P.2d 54, 60-61 (Colo. 1987) (handbook regulations governing student conduct insufficient to create a duty to protect students' private recreational activities); Beach v. University of Utah, 726 P.2d 413, 420 (Utah 1986) (university's behavior code regarding alcohol consumption insufficient to create duty to protect student); Baldwin v. Zoradi, 123 Cal.App.2d 275, 288, 176 Cal. Rptr. 809, 817 (Cal.App. 1981) (university's reservation of right to discipline for on campus drinking and to terminate room license insufficient to create duty).
Generally, courts that have found an assumed duty under § 323 base it on the university's affirmative conduct. For example, in Mullins v. Pine Manor College, supra, 389 Mass. 47, the court found that the plaintiff, a first year student, could rely on the security measures that the college had in place, including a fence around the campus, the presence of security guards, exterior gates and doors that were to be locked between the hours of 5:00 p.m. and 7:00 a.m. and a visitor escort policy, to protect her from being attacked and raped on the campus as she was around 4:30 a.m. one morning. Indeed, the court found that the college's requirement that freshmen live on campus was an implied "representation that the college believed it could provide adequately for the safety and well-being of its students." Id., 389 Mass. 53, n. 11. The college's affirmative conduct in providing security measures and its negligence on the night in question made the plaintiff more vulnerable than if no measures had been in place. Cf. Coghlan v. Beta Theta Pi Fraternity, 133 Idaho 388, 400, 987 P.2d 300 (1999) (Complaint sufficient to survive a motion to dismiss because allegation that two university employees supervised the sorority party that plaintiff attended could potentially state a cause of action for assumed duty; court did not conclude that an assumed duty existed as a matter of law).
Furek v. University of Delaware, 594 A.2d 506, 520 (Del. 1991), appears to be the only decision in which a court found that a § 323 duty arose to protect a university's student based solely on the existence of a university policy, there one expressly prohibiting hazing. On closer examination, however, the Furek court also premised its holding on the pervasiveness of the university's regulation of general security on campus, as well as on the anti-hazing policy. Id., 594 A.2d 522. Of note, Furek's injuries were sustained when he was subjected to prohibited hazing while participating in pledging activities at a fraternity house located within the campus boundaries on land owned by the university. The Supreme Court of Delaware appears to have limited Furek's holding to injuries which occur on university property. Ingato v. Wilmington College, 882 A.2d 761, 2005 Del.Lexis 331 (Del. 2005).
Similarly, in McClure v. Fairfield University, Superior Court, Judicial District of Waterbury, Docket No. 00-0159028 (June 19, 2003, Gallagher, J.) [35 Conn. L. Rptr. 169], the court found that the university's affirmative conduct in providing a "safe rides" program using university vans to transport students to and from the beach area where the plaintiff student was injured created a duty under § 323. The fact that the university had a shuttle service in place foreseeably could have led the plaintiff to change his conduct in reliance on the program and thus be on foot in the beach area at the time he was struck by an automobile. The university's affirmative conduct in providing the shuttle service, combined with its negligence in not always making it available, placed the plaintiff at greater risk than if it had not provided the transportation in the first instance.
The fact that the driver who struck McClure was also a university student is irrelevant because once the university undertook to provide its students a shuttle service between the campus and the beach area, any student pedestrian injured by any negligent motor vehicle operator could claim that the harm was foreseeable if the shuttle were not operating and the student was walking on the roadway as a result.
Here, there is no evidence that the university took any affirmative action that increased the risk of harm to Pawlowski or that Pawlowski affirmatively relied on anything the university did or represented and therefore did not take steps to protect himself from harm. The claims against the university are that it failed to act to protect Pawlowski from harm. The university's alleged failures, such as failing to supervise, investigate or monitor DSP, allowing DSP to remain affiliated with the university, failing to enforce or adopt rules regarding the operation of fraternities, failing to supervise university affiliated fraternities, failing to implement measures to prevent underage drinking on campus, failing to provide transportation to and from off-campus parties, allowing underage students to attend off-campus parties, failing to supervise off-campus drinking and failing to enforce its rules against underage drinking, (Counts four and five, ¶ 19), do not provide a basis for an assumption of duty within the meaning of § 323.
Although the plaintiffs maintain that the university somehow should have taken steps to prevent the party from occurring or to prevent Pawlowski from attending it, they do not dispute that the party was held in a private off-campus residence, that the university could not enter the premises unless invited, that the university had no ability to prevent individuals who were of legal drinking age from procuring and consuming alcoholic beverage in private premises and that the university did not have a safe rides program or other affirmative program to ensure the safety of its students who traveled to and from campus along Whitney Avenue. Thus, the plaintiffs are left with the assertion that the university knew or should have known that failing to effectively enforce its alcohol policy against past and present DSP members and current students would lead to foreseeable harm to Pawlowski.
While it might have been literally foreseeable that a student like Pawlowski could have attended an off-campus party hosted by present and past DSP members at which alcohol would be served to minors, literal foreseeability is not the test. Lodge v. Arett Sales Corp., 246 Conn. 563, 576, 717 A.2d 215 (1998). Particularly in cases where a "duty is asserted against one who is not the direct cause of the harm," the court cannot "separate the question of duty from an analysis of the cause of the harm." Id., 246 Conn. 574. In this case, the actual causes of the harm included Pawlowski's excess consumption of alcohol and his decision to cross a major street mid-block. These causes are attenuated from the university's conduct in enforcing its policies and procedures both generally and specifically. See Id., 246 Conn. 574-75.
In the factual context of this case, the court cannot conclude that it was reasonably foreseeable to the university that the manner in which it enforced its alcohol policy and its past disciplinary actions against certain DSP members enhanced the risk of harm that Pawlowski faced, created a new risk or induced him to forego some opportunity to avoid risk on the night in question. Thus, there is no basis for finding a legally foreseeable duty on the part of the university arising under § 323.
Furthermore, the court is mindful that any duty imposed on a university to proactively protect students engaged in off-campus private recreational activities "creates significant risks of affecting conduct in ways that are undesirable as a matter of policy." Mendillo v. Board of Education, supra, 246 Conn. 483. Imposition of such a duty is contrary to the modern view that colleges and universities do not have a duty to act as custodians of their students. See Freeman v. Busch, 349 F.3d 582, 587-88 (8th Cir. 2003) and cases cited therein. "[S]ince the late 1970s, the general rule is that no special relationship exists between a college and its own students because a college is not an insurer of the safety of its students." (Emphasis in original.) Id., 349 F.3d 587. Although the plaintiffs are not arguing that there was a special relationship between Pawlowski and the university that gave rise to any duty apart from § 323 liability, recognition of a duty on the facts presented here would inevitably require the university to restrict the private recreational activities of its students.
Since the plaintiffs seek to extend the university's affirmative control of student behavior to students living privately off-campus, there is the potential for restrictions that could be far more extensive than those in effect when the doctrine of in loco parentis governed the university-student relationship. Under the in loco parentis doctrine, a university had a custodial relationship over its students. It exercised stringent control over student conduct but, in exchange, was required to provide certain protections to the students. See, e.g., Bradshaw v. Rawlings, 612 F.2d 135, 139-40 (3rd Cir. 1979). "The demise of in loco parentis . . . has been a direct result of changes that have occurred in society's perception of the most beneficial allocation of rights and responsibilities in the university-student relationship." University of Denver v. Whitlock, 744 P.2d 54, 60 (Colo. 1987). "The transfer of prerogatives and rights from college administrators to students is salubrious when seen in the context of a proper goal of postsecondary education the maturation of the students. Only by giving them responsibilities can students grow into responsible adulthood." Baldwin v. Zoradi, supra, 123 Cal.App.3d 291, 176 Cal. Rptr. 818.
Additionally, a conclusion that a duty arises based on policies contained in a student handbook and past practices of the university in enforcing those polices could potentially discourage institutions of higher education from having policies and implementing enforcement practices that govern such things as students' alcohol consumption and students' unlawful behavior. If the absence of a policy means the absence of any duty, a rational institution could opt for laxity over enforcement to the detriment of its student population.
Thus, recognizing a § 323 duty under the circumstances presented by this case poses a risk of a university engaging in either over enforcement, i.e., excessive control, or under enforcement, i.e., no control, of its students' private off-campus recreational activities. Neither of these are desirable outcomes. As desirable as it may be to address the serious problem of students' underage drinking and its adverse consequences, courts recognize that it is "difficult to so police a modern university campus as to eradicate alcohol ingestion." Baldwin v. Zoradi, supra, 123 Cal.App.3d 290. As a practical matter, it may be impossible for a university to police students' off-campus alcohol consumption. The practical limitations on the proactive measures a university may be able to undertake, combined with the attendant costs of such measures, further militates against finding any duty on the part of the university.
The university also claims that if in fact it had a duty to protect Pawlowski, it did not breach it. The fact that the harm was alleged to have occurred off-campus substantially limits what the university reasonably could have been expected to do to protect Pawlowski beyond expecting all students to comply with the policies set forth in the Handbook. It was not unreasonable for the university to expect that its past enforcement action against DSP members would have been an effective deterrent nor was it unreasonable for the university to expect that all students, including Pawlowski, would comply with the alcohol policy. The fact that these expectations were not met does not make the university's conduct unreasonable.
III.
The premise of modern post-secondary education is that students have both rights and responsibilities and that universities do not have a general duty to insure their safety. As a matter of law, the court concludes, based on the undisputed facts, that Quinnipiac University did not assume a duty to the plaintiffs' decedent pursuant to the Restatement (Second) of Torts § 323. Accordingly, the motion for summary judgment is granted.