Opinion
1777CV00152
12-18-2017
Dillon Destefano v. Endicott College et al.[1]
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Tabit, Salim Rodriguez, J.
MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ MOTION TO DISMISS (PAPER #8)
Salim Rodriguez Tabit Associate Justice
INTRODUCTION
This action arises out of an unusual set of circumstances where an underage student attending Endicott College (" Endicott") in Beverly, Massachusetts, became intoxicated and assaulted three individuals over the course of the evening on February 1, 2014, and the early morning of February 2, 2014. That student, Dillon Destefano (" Destefano"), subsequently pleaded guilty to three counts of assault and battery and was sentenced in Essex County Superior Court. Destefano has now brought a three-count negligence complaint against Endicott and its President, Richard Wylie (collectively, the " Defendants"). Destefano contends that but for the Defendants’ negligence, he would not have committed the assault and batteries to which he pleaded guilty, and would not have suffered the damages that have resulted from those convictions. This matter is currently before the court on the Defendants’ Motions to Dismiss. For the reasons that follow, the Motion to Dismiss is ALLOWED.
BACKGROUND
The following facts are taken from the Complaint and are presumed true for the purposes of the Motion to Dismiss. The court has also considered court documents from Essex County Superior Court case No. ESCR2014-00269. Some facts are reserved for discussion below.
A court may take judicial notice of the records of other courts when determining a motion to dismiss under Mass.R.Civ. P. 12(b)(6). Jarosz v. Palmer, 436 Mass. 526, 530 (2002).
On the evening of February 1, and the early morning of February 2, 2014, Destefano, a nineteen-year-old sophomore at Endicott, became extremely intoxicated while at a " dorm party" and at a senior house on campus called the " Farm House." At approximately 1:00 a.m. on February 2nd, Destefano left the " Farm House" with two friends in search of food. Along the way, Destefano engaged another individual in a fight. After the fight, Destefano and his two friends continued to a location known as the " Lodge" to eat. After eating, Destefano and his friends headed to another campus party located at the " Yellow House." While on their way to the " Yellow House, " Destefano engaged a second individual in a fight. After the second fight, Destefano and his friends continued en route to the " Yellow House." Destefano and his friends never made it to the " Yellow House." On the way, Destefano engaged yet a third individual in a fight. Thereafter, the three friends abandoned their plan to go the " Yellow House" and, instead, returned to the " Farm House."
Following the events of February 1st and 2nd, a criminal investigation ensued, resulting in Destefano’s indictment on two charges of assault and battery causing serious bodily injury and one charge of assault and battery. On August 5, 2014, Destefano pleaded guilty to all three indictments and was sentenced to two years committed to the Massachusetts House of Correction on indictment number ESCR2014-269-001, two years committed to the Massachusetts House of Correction on indictment number ESCR2014-269-002, from and after indictment number ESCR2014-269-001, and three years of probation on indictment number ESCR2014-269-003, from and after indictment number ESCR2014-269-002.
DISCUSSION
I. Standard of Review
To survive a motion to dismiss pursuant to Mass.R.Civ.P. 12(b)(6), a complaint must set forth the basis of the plaintiff’s entitlement to relief with " more than labels and conclusions." Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), quoting Bell A. Corp. v. Twombly, 550 U.S. 544, 555 (2007). While factual allegations need not be detailed, they " must be enough to raise a right to relief above the speculative level ... [based] on the assumption that all the allegations in the complaint are true (even if doubtful in fact) ..." Id., quoting Bell All. Corp., 550 U.S. at 555. At the pleading stage, Mass.R.Civ.P. 12(b)(6) requires that the complaint set forth " factual ‘allegations plausibly suggesting (not merely consistent with)’ an entitlement to relief ..." Id., quoting Bell A. Corp., 550 U.S. at 557.
Here, Destefano asserts three claims seeking damages from the Defendants. While the Complaint alleges three separate counts, the action is in essence a negligence action, in which Destefano seeks to establish that the Defendants owed him a duty of care under three distinct theories of liability- social host liability, liability based on the existence of a special relationship, and liability premised upon negligent supervision. Because none of the theories Destefano presents plausibly suggest the Defendants owed him a duty of care based on the facts alleged, the Motion to Dismiss must be allowed.
II. Analysis
A. Social Host Liability
First, Destefano suggests that the Defendants should be held responsible for damages he sustained, as result of his own criminal behavior, under a theory of social host liability. Destefano essentially argues that the Defendants had a duty to protect him from his own conduct. In McGuiggan v. New England Tel. & Tel. Co., 398 Mass. 152 (1986), the Supreme Judicial Court first recognized that common-law tort liability may be imposed on social hosts, stating:
It is difficult to decipher with any accuracy what damages Destefano seeks. At the hearing on the Motion to Dismiss, Destefano suggested that his " reputation" was damaged. Meanwhile, in the Complaint, he seeks " compensatory damages" for being expelled from school, criminal prosecution, loss of his good name and reputation, and severe physical pain and mental anguish.
We would recognize a social host’s liability to a person injured by an intoxicated guest’s negligent operation of a motor vehicle where a social host who knew or should have known that his guest was drunk, nevertheless gave him or permitted him to take an alcoholic drink and thereafter, because of his intoxication, the guest negligently operated a motor vehicle causing third person’s injury.Id. at 162.
Our appellate courts, however, have been cautious about expanding on the duty identified in McGuiggan . See Juliano v. Simpson, 461 Mass. 527, 532 (2012). Mindful of public policy considerations, the courts are reluctant to impose a duty of care in the absence of " clear existing social values and customs" supporting such a step. See, e.g., Remy v. MacDonald, 440 Mass. 675, 678 (2004) (discussing pregnant woman’s legal duty of care to unborn child). For those reasons, social host liability attaches in very limited circumstances. " Liability attaches only where a social host either serves alcohol or exercises effective control over the supply of alcohol." Juliano, 461 Mass. at 528, 532-39.
Here, there is no allegation that the Defendants served or supplied the alcohol Destefano consumed. At most, the facts alleged demonstrate that Destefano was allowed to consume alcohol at the " Farm House." There are, however, no factual allegations suggesting the Defendants purchased, served, or controlled the flow of alcohol Destefano consumed. Further, despite Destefano’s assertion that Endicott campus security observed students that were drinking who were " obviously under-age, " there is nothing in the record to support the conclusory statement that it was " obvious[ ], " to campus security, that the students who were drinking alcohol at the " Farm House" were under age.
" Policy considerations support the imposition of a duty only in cases where the host can control and therefore regulate the supply of liquor." See Ulwick v. DeChristopher, 411 Mass. 401, 406 (1991) (declining to extend social host liability to individual who hosted drinking party at his house, but who never served or provided alcohol to guest who drank vodka while at house, and who was subsequently involved in serious accident injuring third party). Historically, the courts have refused to extend liability to persons who merely owned or controlled property where drinking occurred, as is the case here. See Juliano, 461 Mass. at 534-35; Cremins v. Clancy, 415 Mass. 289, 290-91, 294 (1993).
Even if this court were to conclude that the facts Destefano alleges were adequate to demonstrate that the Defendants exercised sufficient control over the supply of alcohol, to support social host liability, for the same policy consideration detailed in Ulwick, the court refuses to extend the limits of such liability to a college or university. Id. at 406.
No Massachusetts court has ever applied social host liability theory to a college or university. All the relevant cases addressing social host liability involve the excessive consumption of alcohol at someone’s home. See Juliano, 461 Mass. 530 (defendant " invited several friends ... to a party at her home"); Cremins, 415 Mass. at 290-91 (stating friend " arrived at the defendant’s home" with " two cases of beer, " which were " brought into the defendant’s residence" and, thereafter, consumed by defendant and four friends); Ulwick, 411 Mass. 401 (involving " Bring Your Own Booze" party at " the home of the defendant"); Langemann v. Davis, 398 Mass. 166, 166-67 (1986) (stating alcohol was consumed at defendant’s home during party hosted by defendant’s underage daughter). The principle behind imposing social host liability on homeowner is quite simple- a homeowner has control over the alcohol she furnishes during social gatherings at her home. In essence, the homeowner acts as a bartender who can " shut off" a patron who is showing signs of excessive drinking. See Ulwick, 411 Mass. at 406. To impose such a duty on a college or university that may have thousands of students as well as multiple buildings and units to house such students, would be impractical and unreasonable.
B. Special Relationship
Next, Destefano argues that a special relationship existed between the Defendants and himself due to his status as a student, such that the Defendants owed him " a heightened duty of care to insure" his safety while on campus. Destefano maintains the Defendants knew that underage drinking occurred on campus, despite rules and regulations prohibiting such a practice. He claims the Defendants had a duty to enforce the policies and procedures prohibiting these practices and that the failure to do so constitutes a breach of the duty they owed him as a result of their special relationship.
The Supreme Judicial Court set forth the criteria for determining the existence of a special relationship in Irwin v. Town of Ware, stating special relationships " are based to a large extent on a uniform set of considerations." 392 Mass. 745, 756 (1984). The most significant of these being " whether a defendant reasonably could foresee that he would be expected to take affirmative action to protect the plaintiff and could anticipate harm to the plaintiff from the failure to do so." Id. at 756. Although this court can find no case with an analogous set of facts to the current one in which a Massachusetts court has determined a special relationship existed between a college and student, several cases are instructive. See Mullins v. Pine Manor College, 389 Mass. 47, 51-52 (1983) (recognizing special relationship between college and university and students, especially female students, and imposing a responsibility to safeguard students from physical harm resulting from criminals intruding into unlocked or inadequately locked dormitories); Adamian v. Three Sons, Inc., 353 Mass. 498, 500 (1968) (special relationship existed in addressing liability of private party to members of general driving public where alcohol and driving were involved).
No Massachusetts case, however, has ever determined that a special relationship exists between a college or university or its officials and its students that would impose a duty to protect students from the voluntary use of drugs or alcohol. In Bash v. Clark University, 22 Mass.L.Rptr. 84, 2006 WL 414297 (Mass.Super.Ct., Nov. 20. 2006) (Agnes, J.), the court thoughtfully expressed the reasons for the courts’ reluctance to find such a special relationship and impose such a duty. This court adopts this reasoned analysis and likewise refuses to find a special relationship between the Defendants and Destefano.
As stated in Bash:
The doctrine of in loco parentis has no application to the relationship between a modern university and its students ... Most college students have attained the age of majority by the time they enroll as freshman and are responsible for their own conduct ... The burden of protecting against risks associated with the illegal uses of drugs [or alcohol] is far more like the burden associated with maintaining the moral well-being of students than it is like the burden of protecting the physical integrity of dormitories.Id. at *4 (internal citations omitted). And, " it is not appropriate to ground the existence of a legal duty on the part of university officials and staff on the basis of unrealistic expectations about their ability to protect their students from the dangers associated with the voluntary use of illegal drugs [or alcohol]." Id. at *5 (internal citations omitted).
C. Negligent Supervision
Finally, Destefano argues that the Defendants owed him a duty of reasonable care to supervise his behavior to ensure he did not drink alcohol to excess. This theory is novel indeed.
Negligent supervision is a relatively new theory of tort liability and is typically referenced in the context of an employer/employee relationship where an employer is alleged to have negligently hired, retained, or supervised and employee. See Foster v. Loft, Inc., 26 Mass.App.Ct. 289, 291 (1988) (employer sued for the negligent hiring and retention of a bartender who assaulted a customer). This is not to suggest, however, that a claim for negligent supervision can only survive in the context of an employer/employee relationship. See, e.g., Worcester Mut. Ins. Co. v. Marnell, 398 Mass. 240, 241 (1986) (contending negligent supervision of party was proximate cause of auto accident).
In Cooke v. Lopez, the Appeals Court provided an avenue for a plaintiff to pursue a claim of negligent supervision against a parent whose fifteen-year-old daughter had taken her mother’s car and gotten into an accident, injuring the plaintiff. 57 Mass.App.Ct. 703, 705-06 (2003). Although the court ultimately found there was insufficient evidence to support a finding of negligence, it detailed the elements a plaintiff needed to prove to seek damages for negligent supervision against a parent for the conduct of a child. Therefore, this court sees no reason why, in theory, Destefano could not bring a claim for negligent supervision simply because no employer/employee relationship existed between the Defendants and Destefano.
Simply because a plaintiff may bring a claim for negligent supervision outside the context of an employer/employee relationship, however, does not mean that Destefano is entitled to rely on such a claim in this instance. All the negligent supervision cases the parties reference (and the court found) involve injuries to a third party. In essence, a person was injured by the conduct of another, and sued the party the individual believes to be responsible for the supervision of the person who caused the injury. See Nelson v. Salem State College, 446 Mass. 525, 538-39 (2006); Kavanagh v. Trustees of Boston University, 440 Mass. 195, 203-04 (2003); see also First Security Ins. Corp. v. Pilgrim Ins. Co., 83 Mass.App.Ct. 812, 816 (2013); Cooke, 57 Mass.App.Ct. at 705-06; Phoenix Ins. Co. v. Churchwell, 57 Mass.App.Ct. 612, 614-15 (2013). The court is aware of no case, and the parties have cited none, where a Massachusetts court has entertained a claim of negligent supervision where a plaintiff argues that the defendant has a duty to protect him from himself. Unlike every other meritorious negligent supervision claim where a plaintiff seeks to recover damages caused by someone’s conduct, here, Destefano seeks to recover damages he himself caused.
Destefano cites Kavanagh as authority for his suggestion that a college or university may be held accountable for failing to properly supervise a student. This reliance is misplaced. Kavanagh involved a basketball player who brought an action against an opposing player and coach after being punched during an interscholastic basketball game. 440 Mass. at 196-98. The plaintiff argued that the university breached a duty to protect him from the allegedly foreseeable assault and battery of its student. Id. at 201. The Supreme Judicial Court, however, rejected the argument, on among other grounds, the fact that no " special relationship" existed between the plaintiff and the university that would extend to a plaintiff who has no relationship to the university, " special or otherwise." Id. at 201-03.
Although this court is cognizant of the fact that unlike in Kavanagh, Destefano was a student at Endicott, for reasons already stated, this court has determined that no special relationship existed between the Defendants and Destefano that would create a duty on the part of Endicott in this instance. A special relationship, derived from principles recognized under common law, as is the case here, " is predicated on a plaintiff’s reasonable expectations and reliance that a defendant will anticipate harmful acts of third persons and take appropriate measures to protect the plaintiff from harm." Luoni v. Berube, 431 Mass. 729, 732 (2000). Here, the harmful acts alleged are not those of a third person and, it is not reasonable to expect the Defendants to monitor the actions of an adult when it comes to his voluntary intake of alcohol on a large college campus.
ORDER
For the reasons explained, it is hereby ORDERED that the Motion to Dismiss is ALLOWED.