Notes on 3.2 Institutional Tort Liability: Overview, Negligence, Educational Malpractice, and Defamation
3.2.1 Overview
Purpose: Several common law doctrines provide remedies to individuals injured by the action or inaction of others; colleges/universities face common law liability as well as statutory liability.
Who can be sued:
The college/university is usually the defendant, but claims may also be brought against faculty and staff in their personal capacities.
Primary tort focus in higher education:
Tort law requires a college or its agents to refrain from injuring someone to whom the college owes a duty.
Common torts include negligence and defamation; contract law increasingly used by employees, students, and others.
What is a tort in this context:
A civil wrong (not a breach of contract) for which a remedy is provided by the courts.
A plaintiff must show: the institution/its agents owed a duty to behave according to a defined standard of care, the duty was breached, and the breach caused injury.
Typical tort theories in the college setting:
Negligence and defamation are the two classic torts; other theories such as common law fraud appear in lawsuits (briefly noted).
When a college is liable:
Generally liable for torts committed within the scope of an actor’s employment or otherwise authorized by the institution or subject to its control, absent immunity or other defenses.
Example scope issue: a student, employee, or invitee injured due to a college employee’s careless/wrongful act can give rise to liability, similar to a landlord or business owner in comparable circumstances.
Premises and activity scope examples:
Duty to keep premises safe may apply in classroom, residence hall, athletics, etc.; off-campus or abroad activities may also trigger liability.
Notable cases and analyses summarized:
Mazart v. State (N.Y. Ct. Cl. 1981): analyzed two possible theories for institutional liability for student organization torts:
1) Agency theory (respondeat superior): organization acts as an agent of the institution; institution liable for its agents.
2) Duty-to-supervise theory: institution has a duty to supervise the organization because it provided the environment for operation.Court held the university did not exercise sufficient control over the student newspaper to establish an agency relationship and had no legal duty to supervise the newspaper’s editorial process.
Contemporary references following Mazart: McEvaddy v. City University of New York (1995); Lewis v. St. Cloud State University (2005).
Doria v. University of Vermont (Vt. 1991): Supreme Court rejected the institution’s purported “duty to control” over student/faculty activities to preserve a fair election; deferential to academic environment and faculty/students’ activities.
Immunity defenses (availability varies by state):
Sovereign immunity: protects the state and its agencies from certain claims; depends on whether the institution is an arm of the state and whether the state has taken actions to divest immunity (e.g., tort claims acts).
Tort claims acts (statutory exceptions) define permissible lawsuits and procedures (e.g., Florida’s Tort Claims Act, Fla. Stat. § 768.28 (2011)).
Case example illustrating robust public-university protection under a state tort claims act (Texas): Prairie View A&M University v. Mitchell, 27 S.W.3d 323 (Tex. App., 1st Dist. 2000) (university immune from a degree-verification tort claim; registrar sued personally).
Governmental function test: some courts hold security provision as governmental function (e.g., Rashed v. State of New York, 648 N.Y.S.2d 131 (Sup. Ct., App. Div. 1996)); otherwise, governmental immunity may not apply.
Brown v. Florida State Board of Regents (Fla. Dist. Ct. App. 1987): if the activity is not governmental, sovereign immunity may not apply—e.g., operating a lake or facility can impose common law duty of care.
New York example: security at a state university concert can be treated as governmental function; liability may be barred absent a special duty.
Charitable immunity (for nonprofit educational institutions):
Availability varies by state; some states recognize it for activities that serve charitable purposes, others have limitations or reject it in certain circumstances.
Georgetown College v. Hughes (D.C. Cir. 1942): federal appellate court criticized charitable immunity in a hospital-related tort claim; Mullins v. Pine Manor College (Mass. 1983) rejected charitable immunity when activity is commercial; Massachusetts later recognized caps and commercial considerations in charitable immunity cases.
In Massachusetts: charitable-immunity can cap damages (e.g., $20,000) if the tort occurred in an activity that furthers charitable purposes and is not commercial; Goldberg v. Northeastern University (Mass. App. Ct. 2004) involved a health-center patient death; court found health center operation not negligent and applied charitable-immunity cap.
New Jersey: charitable immunity recognized for nonprofit colleges; O’Connell v. State of New Jersey, 795 A.2d 857 (N.J. 2002) upheld immunity under the Charitable Immunity Act for a campus fall injury; later cases extended or clarified application (e.g., Gilbert v. Seton Hall University; Orzech v. Fairleigh Dickinson University; Green v. Monmouth University).
Willful, wanton, or grossly negligent acts, or intentional acts, may defeat charitable immunity.
Example distinction: in Pennsylvania State University context (Sandusky case), a federal court held university not vicariously liable for abuse by an employee for acts outside the scope of employment; examines scope of employment.
Other liability defenses and limits mentioned:
Public vs. private status affects immunity; charitable-immunity defenses may apply to public as well as private nonprofits in some states.
Some exceptions apply where the activity is inherently commercial or involves willful misconduct.
The overall landscape is state-specific and fact-sensitive.
Outcome: The remaining sections discuss the most common tort subjects faced by colleges and universities: negligence (most frequent), defamation, and educational malpractice; plus special topics like off-campus courses, cocurricular and social activities, student-suicide cases, and more.
3.2.2 Negligence
Overview: Colleges face growing negligence lawsuits related to on-campus injuries, off-campus functions, and hazards associated with campus life.
Special relationship doctrine: Courts reject a broad “special relationship” with students in most tort claims but have imposed duties to protect from foreseeable harm (e.g., hazing, dangerous persons on campus).
How negligence liability is determined:
A plaintiff must show: a duty existed, the institution breached the duty by failing to exercise due care, and the breach proximately caused the injury.
Duty is a matter of state common law (e.g., Feliccia v. Lackawanna College, 175 A.3d 221 (Pa. 2017) – issue of fact over whether medical personnel at athletic events were required to satisfy a duty of care).
Typical defenses:
No duty (foreseeability not present); plaintiff’s own negligence (comparative fault) may bar or limit recovery; assumption of risk.
Common negligence targets for colleges:
Premises liability: defective buildings/grounds; on/off campus instructional or cocurricular activities; or claims of educational malpractice.
Computer security: negligent loss/disclosure of records; negligent supervision of employees using electronic information; negligent network security; negligent transmission of data harming privacy interests.
Historical duty standards and shifts:
Early 20th century: in loco parentis shielded colleges from liability; later courts treated colleges as bystanders for adult students (Bradshaw v. Rawlings, 612 F.2d 135 (3d Cir. 1979)); trend moving toward imposing the same duty as non-educational entities in many contexts (modern cases become more protective of student safety).
Key cases illustrating shifts in duty and liability for negligent acts of employees or nonemployees:
Foster v. Board of Trustees of Butler County Community College, 771 F. Supp. 1122 (D. Kan. 1991): a college may be liable for the negligent actions of a student driver hired to recruit a recruit; jury awarded damages; college argued non-liability under agency theory; court found employment status by policy noncompliance as creating a “gratuitous employee” in some circumstances.
Gehling v. St. George's University School of Medicine, 705 F. Supp. 761 (E.D.N.Y. 1989): generally cannot hold medical school liable for injuries caused by medical students unless related to a school-sponsored athletic event; indicates limits on liability for student acts outside employment.
Computer security liability as an emerging area of negligence due to data/privacy concerns.
Premises liability (3.2.2.2) in depth:
Core duty: owners/landlords owe a duty to invitees to maintain a reasonably safe premises.
If a dangerous condition is obvious, there may be no duty to warn; foreseeability is key in determining duty.
Notable premises cases:
Shimer v. Bowling Green State Univ., 708 N.E.2d 305 (Ohio Ct. Cl. 1999): student fell into an open orchestra pit; college won because plaintiff knew stage pit location.
Kadlec v. Louisiana Tech Univ., 208 So.3d 992 (La. Ct. App. 2016): slip at dorm entry; issues of notice/knowledge.
University of Texas v. Bellinghausen, 2016 WL 462735 (Tex. Ct. App. 2016): no speculation that university had actual knowledge of dangerous sidewalk condition; foreseebility matters.
Sampson v. University of Texas, 500 S.W.3d 380 (Tex. 2016): professor’s trip over an extension cord at tailgate—no knowledge of dangerous condition by university; negligence not proven.
Almarante v. Art Institute of Fort Lauderdale, Inc., 921 So.2d 703 (Fla. Dist. Ct. App. 2006): student injured crossing a highway on campus; held negligence claims possible.
Foreseeability and knowledge as central: Pitre v. Louisiana Tech University (La. Ct. App. 1995) vs. reversed by La. Supreme Court on foreseeability; sledding example (obvious vs. foreseeable danger).
Off-premises/elsewhere liability examples and nuances: the university’s duty may extend to injuries arising on property it controls or over which it has a special relationship, even if property is not owned by the university (e.g., roof over a swimming pool; climbing on roofs; satellite or study site liability).
Off-campus courses and supervision (3.2.2.4):
Institutions face liability for injuries in off-campus settings when they maintain or supervise the course and assign students to sites with known risk; the duty arises from the relationship and the university’s reasonable care in assignments.
Delbridge v. Maricopa County Community College District, 893 P.2d 55 (Ariz. Ct. App. 1994): college offered a course with adjunct faculty at SRP site; student injured; court held a special relationship existed; remanded for trial to determine breach of duty.
Gross v. Family Services Agency and Nova Southeastern University, Inc., 716 So.2d 337 (Fla. Dist. Ct. App. 1998): off-campus practicum assignment; university duty to warn about foreseeable risks; Supreme Court of Florida affirmed reasonable-duties in making assignments and requiring warnings; Nova Southeastern University v. Gross, 758 So.2d 86 (Fla. 2000) clarified the duty to warn about off-site internship risks.
Rinsky v. Trustees of Boston University, 2010 U.S. Dist. LEXIS 136876: university liable for negligence and harassment claims related to internship site safety; importance of precautions even when off-campus.
Stockinger v. Feather River Community College, 4 Cal. Rptr. 3d 385 (Cal. Ct. App. 2003): college may assign off-campus internships without creating liability for transportation accidents; the priority is reasonable care in assignment, not control over transportation.
Study-abroad programs: courts increasingly require colleges to take reasonable precautions to protect students; notable settlements and cases in Guatemala (St. Mary’s College), Bloss v. University of Minnesota (Minn. Ct. App. 1999) (sovereign immunity protected government entities in some study-abroad contexts; immunity did not bar all safety claims where actions breached duty).
Cocurricular and social activities (3.2.2.5):
Liability can arise from college-sponsored events or activities related to official school life; consequences depend on whether the college supervised or controlled the activity.
Bishop v. Texas A&M University, 35 S.W.3d 605 (Tex. 2000): student stabbed during a university-sponsored play; faculty advisors’ supervision and university involvement created potential liability; Texas Supreme Court later clarified sovereign immunity issues (Texas 2005).
Whitlock v. Univ. of Denver, 744 P.2d 54 (Colo. 1987): fraternity-sponsored social activity; university’s role as landowner/lessor did not create a special relationship to supervise private social activities; later cases varied by jurisdiction (Paul Smith’s College snowmobile case, Guest v. Hansen, etc.).
If an activity is sponsored and supervised by the institution, a special relationship may exist beyond invitee status; example: Kleinknecht v. Gettysburg College, 989 F.2d 1360 (3d Cir. 1993): college had a duty to provide medical treatment in medical emergencies during athletic practice under a special relationship.
Furek v. University of Delaware, 594 A.2d 506 (Del. 1991): pervasive hazing regulation created a duty to protect students from hazing injuries; Restatement (Second) of Torts § 314A used to justify duty as an undertaking to regulate dangerous student activities.
Knoll v. Board of Regents of the Univ. of Nebraska; Morrison v. Kappa Alpha Psi Fraternity (La. Ct. App. 1999): hazing cases with varying outcomes; Apfel v. Huddleston (D. Utah 1999) reaffirmed limiting liability for off-campus social activities not under university control.
Overall, outcomes are highly fact-specific; outcomes depend on foreseeability, degree of university control/participation, and the presence of a special relationship.
Student suicide (3.2.2.6):
Suicide is a major concern for colleges; data from CDC shows high rates among ages 15–24 and college students.
Emerging trend: courts recognize a duty to warn/protect or to take affirmative action under special-relationship theories in certain circumstances.
Jain v. State of Iowa, 617 N.W.2d 293 (Iowa 2000): rejected “special relationship” to require notifying parents of student’s destructive behavior; staff encouraged counseling and sought parent contact with patient’s consent.
Schieszler v. Ferrum College, 236 F. Supp. 2d 602 (W.D. Va. 2002): aunt alleged special relationship; court found sufficient facts to support a duty to protect the student from foreseeable self-harm.
Shin v. MIT, No. 020403 (Mass. Cmmw. June 27, 2005): Massachusetts case allowing a settlement; later Massachusetts Supreme Judicial Court (2018) in Nguyen v. MIT held that, under certain circumstances, a special relationship may create affirmative duties to rescue or prevent suicide, particularly when university has knowledge of the student’s attempts or plans to harm themselves.
Nguyen v. MIT, 96 N.E.3d 128 (Mass. 2018): outlined seven factors for analyzing special-relationship duties related to suicide prevention, including foreseeability, reliance, degree of certainty of harm, burden on defendant to act, mutual dependence, moral blameworthiness, and social policy considerations; held that actual knowledge of intent or a prior attempt can trigger duty to take reasonable protective steps in certain circumstances; not triggered by mere ideation without stated plans.
Wright State University; Connor v. Wright State University (Ohio App. 2013): reliance element important in establishing a special relationship.
FERPA emergency exception: emergency health/safety exceptions allow disclosure to relevant parties; no private right of action under FERPA after Doe v. Gonzaga University; proactive communications to protect student safety encouraged.
Educational malpractice and related claims (3.2.3):
Educational malpractice claims seek to hold educators responsible for failure to teach or for miseducation; courts are reluctant to recognize these as tort claims.
Ross v. Creighton University, 740 F. Supp. 1319 (N.D. Ill. 1990); 957 F.2d 410 (7th Cir. 1992): educational malpractice claims rejected in favor of contract-based theories; students/deemed actions not within standard of care; court found student responsible for results.
Moore v. Vanderloo, 386 N.W.2d 108 (Iowa 1986): patient harmed by chiropractor trained at Palmer College; educational malpractice claim rejected; concerns about standard of care for educators and the breadth of potential damages.
Missouri: Dallas Airmotive v. Flightsafety International, Inc., 277 S.W.3d 696 (Mo. Ct. App. 2008): similar rationale; no duty to protect students from harm due to alleged miseducation.
Johnson v. Schmitz, 119 F. Supp. 2d 90 (D. Conn. 2000): Yale case involving misappropriation of a student’s dissertation ideas; court allowed some negligence/fiduciary/duty-to-protect theories to proceed against a faculty member, indicating potential for non-educational-malpractice negligence claims in faculty misconduct cases.
Defamation (3.2.4):
Defamation involves publication of statements to third parties that harm a person’s reputation; can be directed at administrators, faculty, or students; letters of reference and evaluations can be defamatory if they are false and harmful.
Opinion privilege: statements framed as opinions (not stating facts) may be protected.
Qualified/conditional privilege for fair comment and criticism: communications made in good faith related to a matter of common interest or duty may be protected; Olsson v. Indiana Univ. Bd. of Trustees, 571 N.E.2d 585 (Ind. Ct. App. 1991): a professor’s letter of reference was protected by qualified privilege if made in good faith for a legitimate purpose; still possible to lose privilege if malice or improper disclosure occurs.
Internal grievance hearings: findings and statements in internal grievance proceedings may not be protected by absolute or qualified privileges (Overall v. Univ. of Pennsylvania, 412 F.3d 492 (3d Cir. 2005)); private institutions may not receive quasi-judicial privilege for internal grievances.
Governmental/constitutional privilege: executive/administrative officers of government have a qualified privilege in communications made in the performance of official duties (Shearer v. Lambert, 547 P.2d 98 (Or. 1976)); this protection is limited to official duties.
Public figures and actual malice standard: individuals who are public figures have to prove “actual malice” to succeed in defamation claims; private figures face a lower standard.
Cases illustrating defamation dynamics:
Doe v. Gonzaga University, 24 P.3d 390 (Wash. 2001), reversed on other grounds, Gonzaga Univ. v. Doe, 536 U.S. 273 (2002): involved university administrators hearing rumors of sexual assault and denying certification; defamation claim involved; federal vs. state law outcomes.
Moore v. University of Notre Dame, 968 F. Supp. 1330 (N.D. Ind. 1997); Campanelli v. The Regents of the University of California, 51 Cal. Rptr. 2d 891 (Cal. Ct. App. 1996); McGarry v. University of San Diego, 64 Cal. Rptr. 3d 467 (Cal. Ct. App. 2007): holdings that statements of opinion or protected privilege can shield defendants from defamation liability when communications are not presented as factual assertions of harmful acts.
Publisher liability and computer networks: institutions that publish defamatory material in official publications or transmit defamatory content online may be liable; computer service providers may be immune under 47 U.S.C. § 230 (Communications Decency Act), depending on the context.
True/false: Truth is an affirmative defense to defamation in many jurisdictions; the Doe v. Gonzaga case and other examples illustrate the defense value of truth in defamation claims.
Sexual misconduct cases: numerous defamation claims arise when students or staff allege sexual misconduct and the university or staff respond with statements about credibility; outcomes depend on privilege, opinion vs. fact, and whether statements are made in the ordinary course of duties.
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3.2 Institutional Tort Liability: Overview, Negligence, Educational Malpractice, and Defamation (Key Concepts, Cases, and Applications across Higher Education)