Nero vs. Kansas State University: Legal Brief on Tort Liability. Christina Hale. Bridgewater State University

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1 Nero vs. Kansas State University: Legal Brief on Tort Liability Christina Hale Bridgewater State University

2 Tort Liability Legal Brief 2 Introduction As an institutional agent in higher education, student affairs practitioners are faced with situations that take many shapes. More often than not, an agent of the university or college will be ever adapting to the different challenges that students bring with them during their educational career. While student affairs professionals attain a degree of higher education and learn the theories and techniques to help students in college, what a lecture can t do to prepare the professionals for what lies ahead, real world experience will. At that point, a rush of information of theories and specialized techniques may flood the brain, but at that very moment the practitioner may handle the situation based on the institution s rules and on their gut instinct. In some cases, handling the situation without over thought on theories can make the appointment flow smoother and result in successful counseling of the student. On the other hand, going with your gut or following the standards set by the institution may not be enough. While the challenges student affairs practitioners face vary on a day to day basis, crises including suicide, hazing, under age alcohol consumption and injuries to students have made an everlasting impression on the ways colleges and universities handle the gray areas of student welfare. For the purpose of this legal brief, the case to be discussed is Nero vs. Kansas State University. This case set precedence for what it meant for an institution to protect its students living on campus and the responsibilities it had which were deemed similar to those set for a landlord-tenant relationship. While the legalities of this case are important and have set precedence for future situations, the focus does not pertain to legal jargon but rather to the implications and the result of this case to student affairs professionals and to institutions of higher education. In order to have an understanding of the

3 Tort Liability Legal Brief 3 implications of this case and how it may affect public and private institutions, it is imperative to understand what the university was being held responsible for and what the charges were in regards to; tort liability. Tort Liability By definition, in the legal system, torts is the system of law that provides a civil remedy for victims of accidents and other personal injuries (Gajda, 2009). Examples of cases that students sued their institutions and expected remedies were injuries on and off campus, educational malpractice, and intentional infliction of emotional distress. While the case of Nero and Kansas State University is discussed in further depth in this legal brief, it is not the only case where institutional tort liability has been at the center of legal debate. A few examples of tort liability and higher education include Bradshaw vs. Rawlings were a student was injured in a car accident that his friend crashed after leaving a picnic hosted by the college, intoxicated. Bradshaw was rendered a quadriplegic and tried suing the college under the premise that they were aware alcohol was at this picnic and they did not take a responsible course of action in their duty to care, to prevent harm to their students. Initially the courts ruled in favor of the student and awarded him monetary damages. His case was that the institution had a duty to care for him on and off of campus and that alcohol consumption was against school policy. The emerging factor in this case was the concept of in loco parentis. At one time in college administration, an institution assumed a role of in loco parentis, a special relationship was created between college and students that imposed a duty on the college to exercise control over students conduct and gave the students certain rights of protection by the college (Kaplin, 1985). This concept was created as students left the supervision of their parents and in lieu of

4 Tort Liability Legal Brief 4 their parents, the college would take responsibility of the students. This concept is also applicable to the case of Nero vs. Kansas State University in their failure of providing safe room and board of the student. Prior to the 1960s, colleges and universities were heavily insulated against potential tort liability by immunity doctrines. Public universities were shielded by governmental tort immunity while private universities were protected by charitable immunity doctrines (Gajda, 2009); the latter was often perceived as more limited and less recognized in the fact of its success. When an institution is accused of being negligent on their responsibilities to students and to the community it can be charged with different tort liability. Two classic torts that are most frequent in postsecondary education are negligence and defamation (Kaplin, 1985). For a case of negligence, the legal definition will be met if the institution owed a duty to the injured party but failed to exercise due care to avoid the injury (Kaplin,1985). If the party suing the college has proven that a duty exists, the next step for a court to figure out is what standard of care the defendant will be held to under the circumstances (Kaplin, 1985). Therefore, if in the case of Nero vs. Kansas State University, the university was proven to have failed in their duty to care and did not take the proper steps to avoid the injury that Nero faced, what should their standard of care have been and how will that affect possible future instances? With the previous case mentioned of Bradshaw vs. Rawlings, and with Nero vs. Kansas State University, the colleges were assumed to have failed to provide reasonable safety measures to their students and therefore assumed negligent in their duties by the plaintiffs. The liability spectrum of an institution can start with the college as a whole being considered liable for a tortuous act, while on the other end the institution can be

5 Tort Liability Legal Brief 5 found liable based on the acts of its employees and student organizations. Examples of student organization tortuous acts have included hazing by college sports teams or Greek life. Employee liability has included administrators or agents of the college not taking appropriate steps in protecting students, such as was one of the arguments in the wellknown Tarasoff complaint. During the 1960s, these immunity doctrines were removed from higher education institutions. However, the court system still protected universities by constructing tort law narrowly to recognize few legal duties to protect students from harm (Gajda, 2009). It then became even more difficult for a student to win a case against their college or university when they were injured, whether at an off campus class picnic or when a piece of material falls off a wall of a classroom and hits a student in the head. These tort laws were strategically constructing to shield the college from being considered responsible for its students. In the world of higher education, the concept of in loco parentis soon became obsolete with the emergence of veteran students, the non-traditional student, and the fact that society was no longer looking at college attendance as a privilege but as an earned right and a economic and professional necessity. Therefore this concept slowly began to disintegrate, which has worked out in the college s favor. In numerous cases against an institution where the plaintiff has brought up the fact that the college was supposed to act as their standing in parent s some colleges have used the legal age of adulthood (18 years) as an excuse to the students behavior. Since some of these cases involved drinking underage, yet the party was technically the age of adulthood and the college stands that the student could make their own decisions and must live with the consequences.

6 Tort Liability Legal Brief 6 Nero vs. Kansas State University The state case of Shana Nero began in 1990; she was a student from the University of Oklahoma and was attending Kansas State University (KSU) during spring intersession. Shana was placed in a co-ed residence Hall, Goodnow Hall where a resident of that hall, Ramon Davenport, a student from KSU, sexually assaulted her. Interestingly, a month earlier in April 1990, Davenport had been accused of raping a female KSU student. Davenport was reassigned to an all male resident hall after the accusation (Rowlands, 1993). On August 29, 1990, Davenport pleaded guilty to the [previous charge of] rape of J.N. In exchange for Davenport's plea on the rape charge, the sexual assault charge involving Nero was dropped (Abbott, 1993). Subsequently, the plaintiff in the case, Nero, filed a negligence suit against the university, claiming that it had a duty to protect her against Davenport s sexual advances and had failed to exercise reasonable care to do so (Rowlands, 1993). The breakdown of in loco parentis began its decent in the 1940s and had been easily recognized across campuses with the emergence of student veterans and an increase in the age of students. This concept soon became stagnant and this relationship soon seemed no longer needed. However, in a few cases, one being Nero vs. Kansas State University, the practice of in loco parentis is not completely obsolete. In fact, the courts have imposed a duty of protection from and prevention of campus crime if it is reasonable foreseeable (Edwards & Gasser, 2001). In the case of Nero v. KSU, the university was being held liable for a number of tortuous acts. The first tort was one of negligence and duty, the institution had an affirmative duty to act based on special relationships. What this means is that there is no

7 Tort Liability Legal Brief 7 duty to control the conduct of a third person (Davenport) as to prevent him from causing physical harm to another unless, a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person s conduct (Lexus, 135). In this case, it was found that the actor, KSU, had a duty to control Davenport due to the special relationship of landlord-tenant as seen in the housing situation. KSU was also held to that duty if the third person s action would cause harm to another party with a special relationship with the actor, which Nero had with KSU. Other torts included a real property law, of landlord and tenant and that states, The duty of a proprietor of a tavern or inn to protect his patrons from injury does not arise until the impending danger becomes apparent to him (Lexus, 135). According to the case, KSU had the responsibility to protect the tavern or housing building and those in it when a danger is identified. When Davenport was accused of raping J.N. he was moved to a different all male location, and this was the college taking charge of a danger. By allowing him back into their housing during intersession the institution therefore took responsibility for its tenants actions. While these are only two of the many torts that KSU was charged with in the case, it is an illustration of the complexity of institutional tort liability. While the outcomes of sexual assault crimes can find the attacker guilty and responsible for their actions against the victim, recent cases involving sexual crimes on college campuses have found the colleges also liable for the harm done to the victim. In the case of Shana Nero and her attack, along with other cases such as Mullins vs. Pine Manor, the colleges have been held responsible for a duty to take reasonable precautions against foreseeable dangers, and to provide a reasonably safe environment. A breach of

8 Tort Liability Legal Brief 8 that duty resulting in sexual assault on campus could subject colleges to incur liability (Edwards & Gasser, 2001). In this case, the courts established a precedent that would be considered for future cases alike. The precedent was that if a crime is reasonably foreseeable, the institution has a duty to protect its students from harm (Edwards & Gasser, 2001). While it must be realized that no aspect of society will ever be (or is) crime-free, even on the most secure campus community there is the chance of unpreventable crime to occur. In this case in particular it was found that the university has a duty of reasonable care to protect a student against certain dangers, including criminal actions against a student by another student (Edwards & Gasser, 2001). To explore more specifically the case of Nero vs. KSU and the theme of landlord and tenant, the courts looked at the precautions the institution took when Davenport was first accused of raping another student. They removed him from the residence hall and placed him in an all male dormitory. This was the college taking reasonable care to protect their students from danger and moving him to another location. However, during spring intersession the college had the knowledge of the previous rape accusation and still chose to rent the co-ed room to Davenport. This brought up the question that if the college was using its discretion to allow housing to this student, did they violate the duty to protect the other students from foreseeable danger? According to the plaintiff, KSU had a duty to protect her from Davenport's actions because of the university's "special relationship" with both Davenport and her and because she shared a landlord-tenant relationship with KSU (Abbott, 1993). Initial hearings of the court stated that KSU took reasonable measures when Davenport was accused of the J.N. rape, but since Davenport

9 Tort Liability Legal Brief 9 pleaded not guilty to the charge, the college had no reason to remove him from housing during the spring intersession or to assume that he was guilty and would assault another female student. The outcome of the case was an initial victory for the university when the district court ruled judgment for the university, however Nero appealed that ruling. The court reversed and found that because the university made the decision to provide housing for students over the private landlords available in the area, the university undertook an accompanying duty to protect its tenants (Lexus, 135). Implications for Student Affairs The case of Nero vs. Kansas State University was a situation related to student affairs that no professional wants to experience, for the student or for the institution. Unfortunately, sexual assault on college campuses have occurred quite frequently, with approximately 25% of the female population possibly facing the chance of being sexually assaulted. Data gathered in 1988 by Koss, stated, one in four women had been a victim of sexual assault and 84% of these victims knew their attacker (Edwards & Gasser, 2001). The affect that these statistics have on higher education is the responsibility of the college to implement policies, procedures, and have administrators available to students when the college is faced with a situation like this. The ethical dilemma involved in these types of situations is something that student affairs practitioners must also deal with. They must be able to provide support to the students, both victim and attacker, as well as implement the policies of the institution even if it results in an undesirable conclusion. Student affairs professionals will have to be aware of how the institution has handled these types of situations in the past and what sort of policies they have in place to address the issue. In student affairs, professionals must be able to react with genuineness to the

10 Tort Liability Legal Brief 10 students that were directly and indirectly involved in such situations, but also be able to back up the decisions made by the college. Sexual assault, student suicide, and massacre are all terrifying issues that colleges have experienced even in the most recent years. It can be a struggle for professionals to personally deal with these horrible acts and hopefully they work for an institution that is readily prepared to address the issue with a favorable response. In the case of Nero vs. KSU, Kansas State University does not have a set policy, practice, or procedure for removing from student housing a student accused of the rape or sexual assault of another student in a residence hall (Abbott, 1993). This factor could have made any professional on that campus uncomfortable and unprepared. Victims of violent crimes and violent acts on campuses all must be treated with an immediate and serious response. Legislation has addressed the issue of violence across college campuses and resulted in several laws and statues. The United States Congress has mandated the responsibility of colleges and universities to promote and maintain safe campus environments (Edwards & Gasser, 2001). For instance, The Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act is applicable to all institutions of higher education and it requires the institution to publicly disclose campus security information. At a minimum, this information must include statistics for seven crime categories (homicide, sex offense, robbery, aggravated assault, burglary, motor vehicle theft, and arson) for the three most recent calendar years and statements of security policies (Edwards and Gasser, 2001). Along with that Act is The Campus Sexual Assault Victims Bill of Rights (Ramstad Act), which requires institutions to take preventative measures by promoting campus awareness, prevention, and education of sexual assault through educational programs.

11 Tort Liability Legal Brief 11 In an effort to understand the responsibilities that a college or university has in response to incidents of liability similar themes have been developed. The college must protect its students from foreseeable dangers. The college has a duty to warn students of known assaults that have occurred in certain locations. This theme is evident on many colleges including our own, with and text communication to the students when an incident has occurred. Finally, institutions are held to the same standard of care required of landlords to warn tenants of potentially dangerous conditions (Edwards & Gasser, 2001). In regards to a case like this and those similar in nature, it is important for student affairs professionals to be aware of policies and procedures employed by the institution for a duty to care, duty to warn, etc. If an institution employs a professional and there are no policies in place then it would be wise to seek counsel from one s management team on how they have handled or intend to handle such crises. In the wake of some of the terrible actions on college campuses it seems ridiculous to think that an institution doesn t have strict policies in place to handle dangerous students, violent crimes, or other inappropriate actions however, the level or degree of the responsibility of the institution may differ place to place. It is important to identify what personal responsibilities, or morals, a professional may possess and how they can be used with the procedures set in place at a place of business. Another outlet that student affairs professionals must be familiar with is the code of ethics they are held to, whether it is the ACA, the ACPA, NASPA or a combination of some. The codes differ in their set-up, the amount of detail, and on other facets but most carry some commonalities. Such commonalities include do no harm, seek consultation (knowing your limits), know the responsibilities of your

12 Tort Liability Legal Brief 12 position, etc. Being familiar with a code of ethics can help when reacting to the many different situations these professionals will be faced with on a daily basis. Another important thing that can be taken from legal cases against an institution is the possibility for not only the institution but also its administrators to be held liable for tortuous acts. While student affairs professionals normally do not seek insurance for their position, it would be wise to know your limits and protection from certain legal claims against you. Conclusion Institutional tort liability is the concept of colleges and universities potentially being held liable and providing remedies for victims (students) of accidents and other personal injuries on and off the campus. While public and private colleges used to be protected by immunity doctrines, many cases have changed the laws and can now hold an institution of higher education responsible for protecting its students from harm. In fact, insurance statistics show a steady, and in some cases alarming, rates of growth in college student injury claims (Gajda, 2009). While student affairs professionals tend to enter the higher education system for its personal connections with students and the ability to impact students, organizations, and even campus policies it is important to not be naive to the potential crises one may also face. In the case of Nero v. Kansas State University, sexual assault on a college campus is an example of one of the unpleasant and very serious situations that student affairs professionals must be ready and willing to face. Unfortunately this type of situation is not a rarity in higher education and court systems across the country have implemented legislation to address these issues. Professionals should be aware of the state and federal laws, the institution s policies, and their own personal and ethical code of conduct.

13 Tort Liability Legal Brief 13 References 253 Kan. 567; 861 P.2d 768; 1993 Kan. LEXIS 135. Retrieved from Abbott, J. (1993). Shana Nero, appellant,v kanas state university, appellee.ed. Law Rep. Edwards, K. E. & Gasser, H. S. (2001). He said, she said: Legal issues surrounding sexual assault on campus. Journal of Student Affairs, 10, Gajda, A. (2009). The trials of academe: The new era of campus litigation. (pp ). Cambridge, MA: Harvard University Press. Kaplin, W. A. (1985). The law of higher education. (2 ed., pp ). San Francisco, CA: Jossey-Bass Inc. Rowlands, T. (1993). Case brief Nero v. kansas state university. Retrieved from static.ow.ly/docs/nerovsksu-rowlands-lag.pdf