LEGAL PITFALLS OF SAFEGUARDING CAMPUSES NEGLIGENCE AND DUTY OF CARE David J. Coughlin, Esq., CPP and Adam C. Thermos LL.B., MA, Ph.D., (CHS-III) Homeland Security Level III, College - University / HA’s Security Consultant. STRATEGIC TECHNOLOGY GROUP 225 Cedar Hill St, Suite 200, Marlborough, MA 01752 Cell: 508-473-4949, Office: 508-630-2372 Fax: 508-630-2101.
[email protected] www.strategictechnologygroup.com _____________________________________
November 8, 2011 Copyright 2011, All Rights Reserved, David J. Coughlin
OVERVIEW Security is increasingly a topic for the media because of unfortunate incidents including the following murders. Texas University Clock Tower shooting in 1966 Virginia Tech shooting in 2007 Yale Lab Murder in 2009 Ohio State Campus Maintenance Worker Shooting in 2010 San Jose State University Parking Garage in 2011 Sexual assault crimes are even more prevalent Robbery and Aggravated Assaults are also included in “Campus Violence” 2010 Crime Statistics from the U.S. Department of Education indicate 1,079 instances of Campus Violence in 2010 Sex Crimes – 706 Aggravated Assault – 274 Robbery – 98 Murder – 1 * U.S. Department of Education Website, Campus Crime Statistics Online at www2.ed.gov/security
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RESPONSIBILITIES Why is Campus Security a Legal Issue? • Public reaction to highly publicized events • Evolving statutes/laws and court cases • Rising costs of education Who is responsible for providing Campus Security? • Any university official who has significant responsibility for student and campus activities. – US Department of Education Definition of a Campus Security Authority • Note that Professional Counselors and Teachers are usually excluded from this definition. Responsibility = Duty of Care • Duty of Care is at the core of negligence law suits.
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NEGLIGENCE Negligence is a “Tort” Tort reform Insurance driven Costs of litigation Elements of Negligence Where a DUTY of CARE is BREACHED by a person (or entity) acting as a reasonable person would not (or not acting as a reasonable person would) and DAMAGES that are reasonably foreseeable, are suffered by the person (or entity) to whom the duty of care is owed are CAUSALLY RELATED to the breach of duty. In Negligence Claims Arising from Campus Violence, Defendants most often seek to show that no Duty of Care existed. A person (or entity) normally has no duty to prevent a third person from causing harm to another; however, exceptions to this general rule arise when a special relationship exists between the persons involved. Restatement (Second) of Torts § 315.
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EXAMPLE OF NO DUTY OF CARE All Colleges are NOT created equal – Size Matters. Katherine Lees v. Carthage College , 2011 WL 3844115, U.S. Dist. Ct., E.D. Wisconsin, August 29, 2011 Plaintiff was raped in her dorm room. College knew that Residence Assistance in Lees’ dorm advised people to use a rock to prop their doors open to encourage communication between residents. Plaintiff’s expert testimony used International Association of Campus Law Enforcement Administrators (IACLEA) “recommended practices” to show that the rape was likely to occur due to the “open-door” policy. However, the IACLEA “recommended practices” are recommended and not compulsory since the authors themselves indicate that “academic environments vary widely” from small rural colleges to large urban universities. Therefore, the U.S. District Court for the Eastern District of Wisconsin held that there was no duty of care required by law and granted the defendant college’s motion for summary judgment. Note that this decision applies and is enforceable as common law only in the Eastern District of Wisconsin. Further it is subject to appeal. The reader is advised not to rely on this material but to seek legal counsel for specific advice.
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LEGAL DUTY OF CARE EXAMPLE Even Uncle Sam Can Owe a Duty of Care Lesa A. Loritis v. United States of America, 489 F.Supp. 1030., U.S. District Court, D. Massachusetts, (1980) A female visitor to West Point was raped while on the military campus. The university had a policy of offering escorts to visitors. No such visitor was offered to Ms. Loritis. Note that this decision applies and is enforceable as common law only in the Eastern District of Wisconsin. Further it is subject to appeal. The reader is advised not to rely on this material but to seek legal counsel for specific advice. Other Examples where Colleges and Universities Owed Duty of Care Washington State Univ. owned student a duty of care based upon her status as a student resident on campus. Jamie Johnson v. State of Washington, 894 P.2d 1366, Ct. of App of Washington, Division 1, (1995). Pine Manor College (MA) student raped on campus. Court said that, “colleges of ordinary prudence customarily exercise care to protect their resident students, including seeking to protect them against the criminal acts of third parties. The court cited Schofield v. Merrill, 386 Mass. 244, 247 (1982) where that court said that duty of care finds its “source in existing social values.” Lisa Mullins v. Pine Manor College et al., 449 N.E. 2nd 331, S.J.C. of Mass (1983).
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REASONABLY FORESEEABLE
If it is shown that a legal duty of care existed, defendant colleges and universities will often attempt to show that the damage was not reasonably foreseeable. Negligence requires that the damages suffered be reasonably foreseeable. In a 2009 case in Massachusetts, a court held that a suicide could be a reasonably foreseeable danger for which Wesleyan University could have a duty of care to protect a student. Douglas Leary v. Wesleyan University, 2009 WL 865679 (2009). Often crime statistics are used to show the existence (or absence) of reasonable foreseeability. Uniform Crime Reports can be used as evidence that one should have known that a specific crime was likely to occur. In 1990 the Campus Security act was created and, it was amended in 2008. This act is codified in 20 U.S.C. § 1092(f) and requires specific reporting of crimes committed on university or college campus property including the following crimes. - Murder (and Non-Negligent Manslaughter) - Negligent Manslaughter - Burglary - Forcible Sexual Offenses - Arson - Non-Forcible Sexual Offenses - Motor Vehicle Theft - Robbery - Arrests or Disciplinary Referrals - Aggravated Assault Liquor, Drug, and Weapons Violations It’s not what you report, it’s what you should reasonably know. Williams v. Utica College of Syracuse University, 453 F.3d 112, 117, U.S. Ct. of Apls., 2nd Cir. (2006). Independent security consultant indicated that, in addition to several significant reported aggravated assaults, there were many other unreported assaults about which the University should have known. * In each of the example cases noted previously, these crime statistics were entered as evidence.
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DUTY OF CARE 1932 – The T.J. Hooper (60 F2d 732, 2nd Cir.) A storm destroyed a tug boat because the operators did not have a radio receiver and did not hear the warning of the storm. At the time, it was common practice for tug boats to have only transmitters to alert the shore in the event of an emergency. The court held that while prudent care and common practice are often the same, common practice is never a measure. The court in T.J. Hooper found negligence on behalf of the operator company because receivers were available. Courts Often Evaluate the Cost Benefit of Safety and Security Measures Learned Hand Test – Risk vs. Utilities. Is the burden of the security protective measures is greater than the likelihood of injury multiplied by the gravity of the damages. (See U.S. v. Carroll Towing Co., 159 F.2d 169, 2nd Cir (1947) where an untied down barge broke away causing great damage. There would have been relatively little effort in securing the barge verses the damages that was cause).
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DUTY OF CARE AND SECURITY SYSTEMS Pine Manor College Case Court refers to security as being the “bundle of services” that the college “voluntarily provides” to students. “No student has the ability to design and implement a security system” … the college is a much better position to provide security. Williams v. Utica College of Syracuse University Case Masked intruder entered a residence hall and assaulted Williams and her roommate. Outer entries to the residence halls had access control locks. Court held that Williams needed to prove that the intruder did not have authorized access to the residence halls, which they were unable to do since the intruder was never apprehended or even identified. However, the appellate court did say that the University had a duty to provide security, much the same way as NY law requires landlords to provide security.
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DUTY OF CARE AND ADMISSIONS Is there a duty of care in accepting students? In a one-month span in 2004, two University of North Carolina Wilmington students were murdered by other students who hid their criminal backgrounds on admissions applications. A report by the University of North Carolina found a pattern of applicants with criminal backgrounds lying on applications and suggested better scrutiny of applications. Colleges say they cannot predict when a troubled student will turn violent. • Campus Security Flaws a Pattern In Slayings, Thomas Frank, USA TODAY 6/12/2007 (http://www.usatoday.com/news/nation/2007-06-12-campus-securityflaws_N.htm). Only 4 percent of colleges conduct criminal background checks on students, and 36 percent of schools don't even require self-disclosure of crimes.
•
American Association of Collegiate Registrars and Admissions Officers
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DUTY OF CARE AND ADMISSIONS (cont’d)
Butler v. Maharishi University of Management, 589 F.Supp.2d 1150, U.S. Dist. Ct. S.D. Iowa, CD, (2008) Student (Sem) stabbed another student (Butler) with a pen. School officials allowed Sem to go to a school cafeteria where he fatally stabbed Butler with a knife. Sem had a record of arrests and mental health issues. The University could have learned about these issues before admitting Sem. The court found that it is possible the University had a duty to screen Sem.
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DUTY OF CARE AND HIRING Is there a duty of care with regard to hiring staff and faculty? Hiring • Welsh Manufacturing Division of Textron, Inc. v. Pinkerton’s, Inc. o Poor background check Negligent Training • Gonzales v. Southwest Security and Protection Agency, Inc. o Employer is liable for the intentional torts of employees while in the course and scope of employment duties. o Nature of security may involve use of force employer must train in proper use of force…includes civil rights training. Negligent Entrustment • Horn v. IBI Security Service of Florida, Inc. • Negligent entrustment of fire arms • Ability, training, and character of the person being assigned a weapon are key factors. Negligent Supervision • International Distribution Corporation v. American District Telegraph o Employers have a duty to exercise care in directing their employees. Negligent Retention • Lindsey v. Winn Dixie Stores o On going due diligence – periodic background checks.
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DUTY OF CARE AND CYBER-BULLYING Is there a duty of care to protect against cyber bullying? Kowalski v. Berkeley County Schools, 652 F.3d 565 (4th Cir. July 27, 2011). • MySpace profile called "S.A.S.H.," which she said was short for "Students Against Sluts Herpes." Another student, however, claimed it really stood for "Students Against Shay's Herpes," referring to a student named Shay N. Kowalski invited about 100 people to join the page. • Kowalski was suspended for 5 days and received a "social suspension" for 90 days, unable to participate in various social events at the school. • Kowalski sued, claiming that the discipline violated her free speech rights under the First Amendment to the U.S. Constitution. • Under the "substantial disruption" test, the school must demonstrate "facts which might reasonably lead school authorities to forecast substantial disruption of or material interference with school activities. • The court commented that “schools have a duty to protect their students from harassment and bullying in the school environment.” • Kowalski indeed pushed her computer's keys in her home, but she knew that the electronic response would be, as it in fact was, published beyond her home and could reasonably be expected to reach the school or impact the school environment. Rutgers Student Tyler Clementi - 2010
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DUTY OF CARE AND SECURITY MEASURES Applied to security measures, what is the balance of costs vs. the likelihood of a violent crime multiplied by the damage caused to the victim? Remember T.J. Hooper – What everyone else is doing is a much smaller factor than what can be reasonably done. Keep up with technology and trends. Make sure you are being advised of the law. Communication within an organization is always expected. Considerations: Are you (the University or College) a “Security Provider” contract or direct guards? Door locking measures/access control Escorts Security (Blue-Light) Phones Lighting Shrubbery Mass Notification Communication between departments Etc.
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RECENT CHANGES TO THE CLERY ACT Required Disclosure of Emergency Response Policies and Evacuation Procedures. Did your institution comply with this by October 1, 2010? Immediate notice to the campus community upon confirmation of a significant emergency or dangerous situation involving an immediate threat to the health or safety of students or staff occurring on the campus, unless issuing a notification will compromise efforts to contain the emergency; Annual publication of emergency response and evacuation procedures to students and staff; Annual test of emergency response and evacuation procedures. (20 USC 1092 (f)(1)(J)); Determine the appropriate campus community segment or segments to notify; Determine the content of the notification; and Initiate the notification system. Report whether there are written agreements with state or local police agencies for the investigation of alleged criminal offenses. (20 USC 1092 (f)(1)(C)(ii).) Hate crimes that must be reported has been modified to include the following crimes: larceny-theft, simple assault; intimidation, and property destruction, theft or vandalism. (20 USC 1092 (f)(1)(F)(ii).)
Copyright 2011, All Rights Reserved, David J. Coughlin
RECENT CHANGES TO THE CLERY ACT (cont’d) Missing Student Guidelines Institutions that have at least one on-campus student housing facility Policy Notification 24-Hour Rule Contract Registration Form Fire Incident Reporting Requirements Institutions that have at least one on-campus student housing facility Fire Log Fire Statistics Burglary Reporting Requirements Any incident of missing or stolen property must meet the following criteria in order to be reported as a burglary 1. Evidence of unlawful entry (trespass), which may be either forcible or not involve force 2. Unlawful entry must be of a structure - having four walls, a roof, and a door 3. Must show evidence that the entry was made in order to commit a felony or theft
Copyright 2011, All Rights Reserved, David J. Coughlin
RECENT CHANGES TO THE CLERY ACT (cont’d) Missing Student Guidelines Institutions that have at least one on-campus student housing facility Policy Notification 24-Hour Rule Contract Registration Form Fire Incident Reporting Requirements Institutions that have at least one on-campus student housing facility. Fire Log. Fire Statistics Burglary Reporting Requirements Any incident of missing or stolen property must meet the following criteria in order to be reported as a burglary. 1. Evidence of unlawful entry (trespass), which may be either forcible or not involve force. 2. Unlawful entry must be of a structure - having four walls, a roof, and a door. 3. Must show evidence that the entry was made in order to commit a felony or theft.
Copyright 2011, All Rights Reserved, David J. Coughlin
QUESTIONS Please feel free to contact us at: David J. Coughlin, Esq., CPP Partner Of Counsel Sassoon & Cymrot, LLP 84 State Street, 8th Floor Boston, Massachusetts 02109 (617) 720-0099 ext. 116
[email protected]
Adam C. Thermos LL.B., MA, Ph.D., (CHS-III) Homeland Security Level III, College - University / HA’s Security Consultant. STRATEGIC TECHNOLOGY GROUP 225 Cedar Hill St, Suite 200, Marlborough, MA 01752 Cell: 508-473-4949, Office: 508-630-2372 Fax: 508-630-2101.
[email protected] www.strategictechnologygroup.com _____________________________________
Copyright 2011, All Rights Reserved, David J. Coughlin
