Family members of student victim in the Michigan school shooting sue school district

The family of Riley Franz, a student who was shot in the neck at Oxford High School last week, is suing the school district and school officials in Oxford, Mich., for $100 million, saying they failed to prevent the mass shooting that killed four students and injured seven people, despite multiple warnings and signs for concern. More on the story here.

The case will hinge on whether the court recognizes that the school had a duty to each student and whether the duty extends to protecting against intentional and criminal conduct.  

The general common law does not recognize a duty to help or to control the conduct of others.  However, over time, courts and the Restatement of Torts have recognized limited duties in certain circumstances.  Some of the most commonly accepted exceptions to the general rule are based on the existence of a special relationship between the person alleged to have a duty to help and the person in need of help.  Traditionally, a special relationship exists when one party depends on the other for protection and the other party has the ability to provide the needed protection.  For this reason, whether a relationship constitutes a special relationship which creates a duty to help or protect has usually been interpreted narrowly.  In fact, for a long time the concept was limited to the relationship between common carriers and their passengers, and between innkeepers and their guests.  However, for a variety of reasons, the notion of special relationships has been extended to include other types of relationships such as those between landlords and tenants, and commercial establishments and their customers.

Likewise, over the years, jurisdictions have shifted their approach on whether schools have a special relationship with their students.  The Restatement (Third) now includes the relationship between a school and its students as one that gives rise to a duty to help.  However, because there are many different types of schools, whose students also vary in terms of age and maturity, the Restatement recognizes that there must be differences in analysis depending on whether the case involves elementary schools or high schools, as opposed to colleges and universities.  As it explains in a comment to the section that recognizes duties based on special relationships, "because of the wide range of students to which it is applicable, what constitutes reasonable care is contextual–the extent and type of supervision required of young elementary–school pupils is substantially different from reasonable care for college students."

Thus, according to this approach, while a school does not have an automatic, broad duty to protect students, certain duties may be triggered under unique circumstances if there is a special relationship between the institution and an individual based on the foreseeability of harm.  

This apparent shift toward imposing a limited duty toward students is not necessarily new, but it seems to be broadening, and given the rising tide of gun violence in schools, it is an important issue for schools of all levels.

I once wrote an article on the possible duty of a college or university to its students.  You can read it here.

Illinois approves sweeping criminal justice reforms that will have torts consquences

Last week, the Illinois General Assembly adopted sweeping criminal justice reforms that include the elimination of cash bail and a requirement that police officers in the state wear body cameras. Some of the adopted provisions are very good; others will have unintended negative consequences; but the one provision that caught my eye is one that few people have been talking about.

According to the bill, Illinois police officers will have a “duty to intervene” if they see another officer using excessive force, even if the officer outranks them.

This is not unique as other jurisdictions have adopted similar provisions in the past year.  See here, for example.  But it is interesting to me because it opens the door to a whole new possibility of civil liability by creating a duty in tort law.  What is going to happen if an officer does not intervene and then gets sued in civil court?  Will courts recognize the right to sue or will they give immunity to the police departments?  Will the court say that the duty is not one that can be enforced through tort law because it is contrary to the generally accepted view that there is no duty to help?

I have not seen the actual bill so I do not know if it addresses these questions in any way; but I will update this post when I find out...

Torts and time travel

Ever wonder how the notion of time travel, and the concepts of proximate cause and the (no) duty to help relate to each other?  Here is the answer.

Article on possible negligence claims and liability for mishandling of matters related to the coronavirus

On March 9, 2020, a couple quarantined on the Grand Princess cruise ship, sued Princess Cruise Lines Ltd. after docking in Oakland, CA. This case marks the first negligence lawsuit filed in direct response to the rising coronavirus epidemic gripping the world. 

There are sure more claims to follow.  Here is a short comment that previews some of the issues.

Recent developments on whether colleges and universities have a duty to protect students from harm -- UPDATED

August

Last year I published an article on whether colleges or universities have a duty to protect students from harm (available here).  In it I discussed the then most recent cases on the subject.  One involved a claim against a university based on an attack by one student on another.  The other case involved a student who committed suicide.  In both cases, the courts found that the institution owed a limited duty of care to protect the students, which was a hint of the beginning of a new trend on the issue.

I am writing about this today because, sadly, there are two recent stories that combine both types of cases.

The first story involves the the death of a 24-year-old Ph.D. student of Chinese and Indian heritage at Utah State University.  According to a complaint filed recently, she ended her life after eight months of racist bullying by classmates.  The complaint names as defendants Utah State University, the head of the psychology department, and some students and professors, and it alleges negligence, wrongful death, and intentional infliction of emotional distress.

The claim against the University and its employees is based on the allegation that the decedent  complained about the alleged bullying to professors and a department chairperson but that the University took no action.

This claim is similar to the one filed in the case I discussed in my article so it will be interesting to see if the courts continue the trend to recognize, and impose, more of a duty to protect.  The one significant difference between the two cases however is that Utah State University is a state actor and, therefore, may be protected by immunity under a state "torts claims act" type statute.

You can read more about the case here.

A second related item involves  a Missouri college student who allegedly was “fascinated” with death and gave five other students advice on how to commit suicide. The student is now being sued by parents of two of the students who killed themselves, along with the University the students attended and the Fraternity they belonged to.  However, from the news account it is not too clear how strong the connection between the conduct of the student and the alleged conduct of the university really is.

You can read more about this case here.

For my posts on cases involving suicide, including some cases involving claims against colleges and universities, or against students for hazing, go here and scroll down.


UPDATE 11/3/19:  CBS has an article on the case here.

Lawsuit Blames Sorority Hazing for Athlete's Suicide

I recently published a short article on two recent cases on whether universities have a "duty to help" students by preventing injuries caused by other students or by protecting students from injuring themselves (including by attempting to commit suicide).  You can read it here.

With this in mind, I found it interesting to read that FindLaw is reporting that the mother of a Northwestern University basketball player that took her own life in early 2017 has filed a lawsuit in the Northern District of Illinois court alleging that Jordan's sorority's hazing motivated her suicide.

I have not seen the complaint itself so I am not sure of the details, but from the stories I have read in the press, it appears the lawsuit is against the sorority and not against the University.

Parents who allowed child to die for religious reasons plead guilty

A number of years ago, I posted a number of comments on the possibility of imposing civil liability on parents whose refusal to provide medical treatment to a child for religious reasons causes the child to suffer an injury (or death).  See here, here and here, for example.

I had not seen the issue in the news for a long time, but today I saw an item in the news that caught my eye:  As reported in the Daily Beast, "[t]wo members of an Oregon church that believes in faith healing pleaded guilty to negligent homicide this week in the death of their newborn daughter, who spent hours struggling to breath without ever receiving medical treatment."  You can read the full story here.

This is, of course, a criminal law matter; but it does raise the question I have asked before.  If the parents can be criminally liable for this conduct, should we recognize a civil cause of action against them for wrongful death also? 

Massachusetts and California rule universities have a limited duty to help students because of special relationship

As readers of this blog know, the general common law did not recognize a duty to help or to control the conduct of others.  However, over time, courts (and eventually the Restatement) recognized limited duties in certain circumstances.  One of the most commonly accepted of these exceptions to the general rule is based on the existence of a special relationship.

Traditionally, a special relationship exists when a person is dependent on the other for safety.  Whether a relationship constitutes a special relationship which creates a duty to help, or protect, has usually been interpreted narrowly and for a long time was limited to the relationship between common carriers and their passengers and innkeepers and their guests.  However, some jurisdictions (and the Restatement) have considered extending the notion of special relationships to include other circumstances including the relationships between landlords and tenants, and commercial establishments and their customers.

As you would expect, whether schools have a special relationship with their students is a common question.  Because of the types of schools and ages of the students, the analysis is different if the case involves elementary schools or high schools, as opposed to colleges and universities.

There are lots of cases out there related to injuries suffered by students in college campuses, but not all jurisdictions have decided whether the schools have a duty to help or protect the students based on the relationship between the school and the student.

You may remember from your law school days a case called Hegel v Langsam used by many textbooks to illustrate the generally accepted rule that universities do not have a general duty to protect students.  Yet, according to some, there seems to be a trend to recognize (or impose) a duty in recent times.

Now we can add Massachusetts and California to the list of states that have decided the issue in favor of imposing a limited duty on the university.

Last December I wrote about a case brought against MIT that asked whether the university should be held responsible in a wrongful death claim based on the fact that a student took his own lives.  You can read my initial comments about the case here.

The student’s family sued, claiming his death was preventable and that the school had a legal duty to use reasonable care to protect him from harm.  MIT replied that the school wasn’t aware of the severity of the student’s condition and that he was treated by outside professionals, none of whom thought the student was a risk to himself.

I just read that the Supreme Court of Massachusetts issued its opinion yesterday.  I have not read the opinion itself, so I can't comment in detail but from what I have read, the court found that a university has a duty to take action if it is aware that a student has attempted, or has threatened, to commit suicide while enrolled at the university.  I do not know of any other cases that have found that universities have a duty to prevent suicides. 

Meanwhile, in California, the Supreme Court decided back in March, that colleges and universities are in a special relationship with their enrolled students which creates a limited duty to help, and protect, during school-sponsored activities over which the college has some measure of control.

The case is called The Regents of the Univ. of California v. Superior Court (decided March 22, 2018).  This one I have read and here is a summary:

The facts are long and detailed, but the short version of the story is that over more than a semester a certain UCLA student suffered from hallucinations and other mental health issues and behaved erratically and threateningly toward other students.  The problematic behavior was known to other students, TAs, professors, and members of the administration of the university.  The administration took action to help the students involved, including moving the problematic student off his dorm, and providing counseling.  The student was cooperative at times, but not consistently.  Sometimes he attended counseling, sometimes he did not.  Sometimes he took medication, sometimes he did not, and so on.

Again, there are more details to the story, but to make it short, one day at the end of class in a a science lab, the student unexpectedly and without provocation attacked another student (the plaintiff in the case) with a knife, causing her severe injuries.

The plaintiff sued the attacker and UCLA.  Against UCLA, she argued that the university owed her several duties:  (1) a duty to take reasonable protective measures to ensure her safety against violent attacks and otherwise protect her from reasonable foreseeable criminal conduct; (2) a duty to warn her as to such reasonable foreseeable criminal conduct on its campus and in its buildings; and, (3) a duty to control the reasonably foreseeable wrongful acts of third parties/other students.  In the alternative, she argued that even if UCLA did not owe those duties to her based on the special relationship, UCLA had assumed a duty of care by undertaking to provide campus-wide security.  (Because the court found that UCLA did owe a duty based on the special relationship, this last argument was not addressed.)

UCLA filed a motion for summary judgment arguing that colleges have no duty to protect their adult students from criminal acts but the Trial Court denied it.  On appeal, a divided panel of the Court of Appeal reversed.  The dissenting judge opined that colleges have a special relationship with their enrolled students, “at least when the student is in a classroom under the direct supervision of an instructor” and that, therefore, colleges have duty to protect against foreseeable threats of violence in classroom.

The plaintiffs appealed and the state supreme court agreed with the dissenting judge holding that there is a duty to protect, although there is no duty to control.

The Court's opinion starts by reviewing the general rule and the exceptions to the notion of a duty to help.  Thus, the court is clear that there is no duty to help unless the plaintiff can establish that the defendant had a special relationship toward the plaintiff that justifies imposing a duty on the defendant.  Such a relationship would be characterized by dependency and control: one party depends on the other for protection and the other has the ability to provide control over that needed protection.  The court also explains even if there is a duty, the duty must be limited.  It can't be a duty owed to the public at large; it is owed only to those to whom the special relationship applies.

With this as the general background, the court compared the circumstances of the case to those of cases involving high schools because it has already been decided that high school do have a duty to protect students.

The court admitted that there are differences between high schools and colleges but decided the relationship between a university and its students still justifies finding that a duty is owed.

The cases involving high schools have held that there is duty owed because the relationship between the school and the students is characterized by mandatory character of school attendance and comprehensive control over students exercised by school personnel.  Even though in the college setting, the students have more freedom and are usually not minors, the court found that students are still somewhat vulnerable because, although they are not minors, they are still learning how to navigate the world as adults and are, therefore, dependent on their college communities to provide structure, guidance, and a safe learning environment.

Given this conclusion, and the fact that colleges have superior control over the college community environment and the ability to protect students, including by monitoring and disciplining them if necessary, the court concluded that it is justified to find that colleges have a special relationship with their students.

However, the fact that there is a special relationship does not mean there is a duty to everyone or to eliminate all risks.  The court concluded that colleges are in a special relationship with their enrolled students only, and limited to the context of school-sponsored activities over which the college has some measure of control.  The court also noted that this duty is not a duty to prevent violence, which would be impossible to discharge.  It is a duty to take reasonable steps to protect students when the university becomes aware of a foreseeable threat to their safety.

Applying its conclusions to the facts of the case, the court remanded the case for the Court of Appeal to decide whether triable issues of material fact remain on the questions of breach of the duty (alerting to the fact that the appropriate standard of care for judging reasonableness of university’s actions remains an open question, which parties are free to litigate on remand.)

Thus, UCLA lost the argument on whether the court should impose a duty, but it is possible that UCLA will not be liable if it is determined that it did not breach the duty.

In a separate Concurring Opinion, one of the justices makes a very good point:  the language used by the court may be a bit too broad.

For a few reasons, this justice did not join the majority opinion insofar as it would extend the duty beyond the classroom, to encompass more broadly “curricular activities” and activities “closely related to [the] delivery of educational services.”   First, there is no need to decide if the duty extends beyond the classroom, because the attack in this case occurred in a classroom.  Second, the extent of a university’s control in a non-classroom setting varies considerably because activities outside the classroom differ in potentially significant ways. And, third, the majority’s conclusion can create confusion because it offers no guidance as to which non-classroom activities qualify as either “curricular” or “closely related to [the] delivery of educational services” or what factors are relevant to this determination.

Miami Doctors Allow Man To Die Because Of “Do Not Resuscitate” Tattoo On Chest -- UPDATED

Jonathan Turley recently wrote about an interesting case in which doctors at a Miami Hospital decided to stop providing help to a patient because of a "do not resuscitate tattoo."   The story is interesting because, according to the report, Florida only recognizes DNRs if they are provided in a specific form.  If this is true, the doctors did not act according to the state's law.  Here is part of the story:

"Doctors at the Jackson Memorial Hospital faced a novel issue when a 70-year-old man was brought into the emergency room after being found intoxicated and unconscious on the street. . . . The doctors were working to assist the man when someone noticed a large chest tattoo reading “DO NOT RESUSCITATE.” It even had a tattoo signature. After consulting an “ethics expert,” the hospital treated the tattoo as a viable DNR form and allowed the man to die. In my view, the expert was wrong on the law if his decision was based solely on the tattoo. 

Florida agencies have a specific form and states: Do Not Resuscitate Order—Form 1896 (Multilingual) Important! In order to be legally valid this form MUST be printed on yellow paper prior to being completed. EMS and medical personnel are only required to honor the form if it is printed on yellow paper.  

The form has a place for a physician’s signature and required showings of informed consent. Florida does not recognize a metal DNR bracelet or necklace. A patient may carry a “patient identification device”, a smaller version of DH Form 1896 for their wallet or even a chain. 

The problem is that “Do Not Resuscitate” teeshirts and tattoos are common jokes. There was no way that the staff could determine if this was a joke or waiver.  

A similar case was discussed in a 2012 article in the Journal of General Internal Medicine, involving a 59-year-old patient. He had “D.N.R.” tattoo across his chest but he said the tattoo was a joke and the result of losing a bet in poker."

The doctors involved wrote the following Letter to the Editor of the New England Journal of Medicine:

We present the case of a person whose presumed code-status preference led him to tattoo “Do Not Resuscitate” on his chest. Paramedics brought an unconscious 70-year-old man with a history of chronic obstructive pulmonary disease, diabetes mellitus, and atrial fibrillation to the emergency department, where he was found to have an elevated blood alcohol level. The staff of the medical intensive care unit evaluated him several hours later when hypotension and an anion-gap metabolic acidosis with a pH of 6.81 developed. His anterior chest had a tattoo that read “Do Not Resuscitate,” accompanied by his presumed signature. Because he presented without identification or family, the social work department was called to assist in contacting next of kin. All efforts at treating reversible causes of his decreased level of consciousness failed to produce a mental status adequate for discussing goals of care. 

We initially decided not to honor the tattoo, invoking the principle of not choosing an irreversible path when faced with uncertainty. This decision left us conflicted owing to the patient’s extraordinary effort to make his presumed advance directive known; therefore, an ethics consultation was requested. He was placed on empirical antibiotics, received intravenous fluid resuscitation and vasopressors, and was treated with bilevel positive airway pressure. 

After reviewing the patient’s case, the ethics consultants advised us to honor the patient’s do not resuscitate (DNR) tattoo. They suggested that it was most reasonable to infer that the tattoo expressed an authentic preference, that what might be seen as caution could also be seen as standing on ceremony, and that the law is sometimes not nimble enough to support patient-centered care and respect for patients’ best interests. A DNR order was written. Subsequently, the social work department obtained a copy of his Florida Department of Health “out-of-hospital” DNR order, which was consistent with the tattoo. The patient’s clinical status deteriorated throughout the night, and he died without undergoing cardiopulmonary respiration or advanced airway management. 

This patient’s tattooed DNR request produced more confusion than clarity, given concerns about its legality and likely unfounded beliefs that tattoos might represent permanent reminders of regretted decisions made while the person was intoxicated. We were relieved to find his written DNR request, especially because a review of the literature identified a case report of a person whose DNR tattoo did not reflect his current wishes. Despite the well-known difficulties that patients have in making their end-of-life wishes known, this case report neither supports nor opposes the use of tattoos to express end-of-life wishes when the person is incapacitated.

UPDATE 1/21/18: NPR recently picked up the story here.

Illinois state rep proposes "good samaritan" law to protect people who cause damages when trying to rescue dogs or cats

Have you ever seen a dog locked inside a hot car and felt like breaking a window?

An Illinois state legislator is proposing legal immunity for people who rescue pets from hot vehicles. Rep. David Olsen has filed a bill that would alter the Humane Care for Animals Act, allowing civil and criminal liability exemptions for people who break into cars to save dogs or cats — as long as they attempt to tell police about it first. The Illinois News Network has a summary, and the bill itself can be found here.

I only have one question, why limit it to dogs or cats? Don't other pets deserve rescuing too?

Should a school be liable if a student commits suicide?

A student’s suicide at MIT has sparked a contentious legal battle before the Massachusetts’ supreme court over whether a university can be held responsible when students take their own lives. The case is important to colleges and universities because a decision against the university could place an unreasonable burden on untrained employees to stop suicides.

The case involves a student who was allegedly suffering from depression and struggling with his schoolwork.  Then one day, moments after a professor confronted him about something the student wrote in an e-mail, the 25-year-old took his own life.

The student’s family sued, claiming his death was preventable and that the school had a legal duty to use reasonable care to protect him from harm.  MIT has replied that the school wasn’t aware of the severity of the student’s condition and that he was treated by outside professionals, none of whom thought the student was a risk to himself.

The case involves two issues typically covered in a first year Torts class: whether a school has a duty to help students, and whether the decision to commit suicide operates as a superseding cause that defeats the plaintiff’s argument of proximate cause.

There are many cases out there that hold that a university does not have a duty to help adult students protect themselves from harm, or to monitor their daily lives; but this can change if the school has acted in a way that shows it has assumed a duty.  It also may be affected by the state’s law regarding the definition of a “special relationship” which may give rise to a duty to help.

On this issue, there is also the question of whether it would be a good idea to apply a standard designed for health professionals based on the famous Tarasoff case to faculty members (who are typically not trained as medical professionals, much less as psychologists or psychiatrists).

This is an interesting question, but the answer should be that it is not a good idea.  First, let’s not forget that, contrary to popular belief, Tarasoff has not been adopted in all jurisdictions.  (The jurisdiction I live in has rejected it several times.  Go here for one such case.)  So, it can be argued that even applied to health professionals, it is not a good policy to follow.  Second, applying a policy that is based on the specific training of those to whom it applies does not make much sense when you try to extend it to apply to people who do not have that training.  Also, imposing a duty on people who are not trained could have unintended negative consequences.  Fear of liability may cause professors and others without mental health expertise to overreact, which in turn could discourage students from coming forward with their problems to those who could offer help.

As to the second issue, many jurisdictions hold that the decision to commit suicide is a superseding cause as a matter of law, perhaps based on the notion that it is unforeseeable that someone would choose to end their life on purpose.  Yet, an argument can be made that this is not always the case.  In fact, it is not difficult to come up with examples of cases where you can argue it is foreseeable that someone would commit (or try to commit) suicide.  For this reason, the cases on this question can be inconsistent.  (For an example of one such case, go here.)

Reportedly, a group of 18 colleges and universities — including Harvard University and Boston College — urged the state supreme court to reject the plaintiffs’ claim, saying a decision in favor of the family could have devastating consequences. Stay tuned.

Short article on fraternity houses and hazing

Almost a year ago I reported that the Illinois Supreme Court had granted review on a case that asked whether the officers, pledge board members of a fraternity or the fraternity itself should be liable for the death of a student who died while participating in a social event at a college fraternity.  Since then other similar incidents have been reported in other states.  

I am coming back to this topic today because I just saw that Prof. Gregory Parks (Wake Forest) has a short article in The Huffington Post about the tort duties of fraternities and sororities with regard to hazing.

Thanks to the TortsProf blog for the link.

Should a university and its professors be liable when a student commits suicide?

An interesting case heading to the Massachusetts supreme court will explore whether schools can be held responsible when students take their own lives.  The case arouse out of a suicide at MIT.  The student was reportedly battling depression and “struggling” at school.  One day, moments after a professor confronted him about an offensive e-mail, the student took his own life.

The student’s family has argued that the University had a legal duty to use reasonable care to protect the student from harm because professors and other MIT officials knew he was a suicide risk.

Torts students will recognize the connection between two lines of cases discussed in class.  Typically, courts will not impose a duty on institutions of higher education to control or intervene with their adult students decisions, even if the students cause harm to themselves.  On the other hand, in cases originating in the famous decision in Tarasoff v.  Regents of the University of California, many jurisdictions have adopted a duty to help unsuspecting victims based on confidential patient information obtained by therapists. 

The case in Massachusetts seems to combine elements from both of these lines of cases.  The big difference is that the new case seems to seek to impose a duty to act on all employees of the University who can be claimed to have had some knowledge of the state of mind of the student. 

This would put a new, and unprecedented, burden on professors, who are not really in a position to evaluate the state of mind of their students.  In fact, according to one account I read on this case, none of the nine professionals who treated the student while he was at MIT believed he was an imminent risk of killing himself.  On the other hand, however, at least one of the professors involved apparently had a good sense of the problem, since he is quoted as having warned others that they needed to act or they would have "blood on their hands."

In fact, one point of contention in cases like Tarasoff is whether, or at what point, can a therapist really know that the patient will act up.  Thus, it can easily be argued that it would be a bad idea to place a similar burden on Professors who are not trained to recognize warning signs or to provide therapy.  Among other things, fear of liability may cause professors and others without mental health expertise to overreact, which in turn could discourage students from coming forward with their problems.  It may also create chilling effects on professors willingness to provide feedback, or to cover certain topics in class. 

Although I have not done a full search on the question, I don’t remember every hearing of a case in which a court has held that an university has a legal duty to prevent student suicides.

Interestingly, even if the court were to recognize a cause of action, it would still have to address the issue of whether the conduct of the victim in deciding to commit suicide should be considered to be a superseding cause that defeats the cause of action.  

You can read more about the case here.

IL Supreme Court to decide whether fraternity should be liable for injuries to student sufferes injuries after becoming intoxicated at fraternity event

Should the officers, pledge board members of a fraternity or the fraternity itself be liable for the death of a student who becomes intoxicated, loses consciousness, and ultimately dies while participating in a social event at a college fraternity? 

The Illinois Supreme Court has agreed to decide the question as presented in a case called Bogenberger v. Pi Kappa Alpha Corporation.

Like most states, Illinois does not recognize "social host liability" in most cases, but it does recognize possible liability under a statute called the Anti-Hazing Act which recognizes possible liability when the victim is required to drink to intoxication to become a member of a club or organization.

For more details on the case and the issues presented, go to The Appellate Strategist.

Ohio Supreme Court clarifies the meaning of the state's Good Samaritan statute

About two weeks ago, the Ohio Supreme Court issued an important opinion interpreting the state’s “Good Samaritan statute,” a phrase that, as I am sure you know, refers to statutes to provide immunity to people who cause injuries while trying to help others under circumstances where there is no affirmative duty to do so.  The case is called Carter v. Reese and you can read the opinion here.

Although most, if not all, states have enacted Good Samaritan statutes, their terms vary considerably from state to state. In some, they apply only to certain members of the medical and other related professions. This is so because while the goal of the statute is to encourage people who don’t have a duty to help to try to help, the public policy is to encourage only those who know what they are doing when it comes to providing emergency medical help. In other states, on the other hand, the statutes are more general and apply to everyone. In those states it has been decided that it is better to encourage people to help even if they are not trained to do so. Two other issues about which states differ are the definition of an “emergency” and the definition of the type of “care” involve.

Asked to interpret the statute in Ohio, which states that “No person shall be liable in civil damages for administering emergency care or treatment at the scene of an emergency. . . , for acts performed at the scene of such emergency, unless such acts constitute willful or wanton misconduct,” the Court explained,

This case presents our court with two separate questions involving the legislative intent behind Ohio’s Good Samaritan statute. First, what did the General Assembly intend by using the phrase “no person shall be liable in civil damages”—did it intend to include only health care professionals who administer emergency care or treatment at the scene of an emergency, or, more broadly, to include any person who administers emergency care or treatment at the scene of an emergency? 

Second, what did the General Assembly intend by using the phrase “administering emergency care”—did it intend to limit emergency care to only the administration of medical care, or, did it intend to include all forms of care administered at the scene of an emergency?

The Court’s conclusion:

Ohio’s  Good  Samaritan  statute  applies  to  any  person  who administers emergency care or treatment at the scene of an emergency including but not limited to health care professionals. Moreover, the phrase “administering emergency care” in the statute is not limited to medical acts and includes rendering medical and any other form of assistance to the safety and well-being of another when the result of an unforeseen combination of circumstances calls for immediate action.  

Two Justices (O’Connor and Lanzinger) agreed with the majority’s holding that the statute applies to any person, but dissented as to the definition of “emergency” as “an unforeseen combination of circumstances.” They argued that the definition of an “emergency” should be “sudden events or circumstances that require urgent or immediate attention or action,” regardless of whether the events were foreseeable.

On the possible liability of parents who don't vaccinate their children, again

Long time readers of this blog know I have posted a series of comments on whether there should a cause of action against parents who do not vaccinate their children.  See here, here, here and here.   With that in mind, here is a link to an article in Slate on tolerance of anti-vaccine parents.  It starts: "Tolerance of racial and cultural diversity is good. Tolerance of those who endanger the community by refusing to vaccinate their kids is not. An Australian primary school just learned that the hard way."

In a newsletter to parents, the school’s principal directly told parents that they should tolerate the vaccine dodgers among them stating "[w]e expect all community members to act respectfully and with tolerance when interacting with other parents and carers who may have a differing opinion to their own. This includes an opposing understanding about child immunisation."

As the article then states, those words may sound “respectful” and “admirable,” ... until 25 percent of your school is suddenly infected with chickepox within two weeks (which, of course, is what happened).

Article on whether universities have, or should have, a duty to protect students -- UPDATED

Back in October I posted that a California appeals court issued an opinion (with one dissenting judge) reaffirming the generally accepted view that state public colleges and universities do not have a general duty to protect adult students from violent acts by other students.   Go here to read my original post.

In that case, the court ruled that "While colleges and universities may properly adopt policies and provide student services that reduce the likelihood such incidents will occur on their campuses, they are not liable for the criminal wrongdoing of mentally ill third parties, regardless of whether such conduct might be in some sense foreseeable."  And I stated that this approach is not surprising and appears to be the majority view on the issue, whether because the conduct of the actor is considered a superseding cause or whether because of the long standing (although often criticized) rule that there is no duty to help.

In response to the case, the blog "New Private Law" has published a very well written post arguing the case was wrongly decided.  It argues that the case was wrongly decided because the issue in the case is "by far" closer to Tarasoff than to any of the cases that hold universities do not have a duty to protect students.  In support of this conclusion, it argues that "the gist of the complaint is not that the University failed to do enough to enforce general policies (such as those against underage drinking), but rather that the University had reason to believe that a particular student posed a serious danger to his fellow students and other members of the university community.

 You can read the full post here.

UPDATE (12-7-15):  As I reported elsewhere, the Washington Supreme Court is currently considering whether the extend the notion of a therapist's duty to warn identifiable possible victims under a Tarasoff approach, to a duty to warn the general public.  See here.

UPDATE (12-8-15):  Here is another article on the decision in University of California v. Superior Court of Los Angeles County, in which the court rejected the request to impose a duty on a university.

Washington Supreme Court to decide whether doctors have a duty to warn “all foreseeable victims” of potentially dangerous patients in their care

Last month the Supreme Court of the State of Washington heard oral arguments in a case called Volk v. DeMeerleer which raises the issue of whether doctors have a duty to warn “all foreseeable victims” of potentially dangerous patients in their care. In the case, a psychiatrist was sued after one of his patients shot and killed an ex-girlfriend and her son before killing himself. The trial court dismissed the complaint (on summary judgment) on the grounds that the doctor did not have a duty because the patient haad made no specific threats the victims during his treatment. The appeals court reversed (with one judge dissenting), however, holding that the plaintiff could support a cause of action because the patient's conduct was foreseeable and holding that "a question of fact exists as to whether Dr. Howard Ashby and his employer, Spokane Psychiatric Clinic, P.S., owed a duty to protect the general public, including plaintiffs, from violent behavior of patient Jan DeMeerleer." You can read the full appeals court's opinion here.

Leaving aside the fact that this is an odd ruling because the question of whether there is a duty is usually thought of as a question for the court, not the jury, the issue before the court is very interesting.  It calls for the court to expand on the doctrine created by Tarasoff v Regents of the University of California, which I am sure you are familiar with.  In that case, the California Supreme Court held that a therapist does have a duty to protect an identifiable victim.  The plaintiffs in Volk are asking the court to extend this notion further because the victims were not identifiable.  The plaintiffs are asking for a duty to "protect the general public."

Tarasoff is a well known case, and a popular one, but it has been rejected by a number jurisdictions.  Also, back in 1979 the Washington Court of Appeals decided a case in which it refused to expand the reach of the Tarasoff doctrine in a case where the victim already knew of the possible threat to her safety. (Interestingly, that case involved a lawyer, rather than a therapist) who arguably had confidential information about a client's intent to harm someone else.)  For these reasons, it would not be entirely surprising if the Washington Supreme Court reverses the Court of Appeals.  Yet, it will be very interesting to see what happens.

A finding for the plaintiff will have serious implications for the medical profession, and potentially for the legal profession too, because such a ruling will affect the principle of confidentiality.  It is because of the importance of confidentiality that courts have either rejected Tarasoff or refused to expand its reach.  Take a look at Thapar v Zezulka, 994 SW2d 635 (Tex 1999) (medical profession) and Hawkins v. King Cty. Dept. of Rehabilitative Services, 602 P.2d 361 (Wash. Ct. App. 1979) (legal profession).

The New York Times published an Op-Ed piece on this case written by a doctor in which he argues the court should reject the plaintiffs' claim and protect the value of confidentiality in the doctor-patient relationship.  You can read it here.  The argument is a good one, although the author makes a horrible mistake in his analysis when he illustrates his duty of confidentiality by telling a story of a time when he destroyed illegal drugs handed to him by a patient in order to help the patient avoid arrest.  In doing so, the doctor was not protecting the patient's confidentiality but, at helping someone destroy evidence of a crime; but I suppose that is another story.  (The article generated two letters to the editor, one of which points out this issue.)

On the question of a possible duty in tort, I do agree the court should rule for the defendant.  Even if the duty recognized in Tarasoff applies in the jurisdiction, a duty to warn the general public when there is no indication of specific plans or specific possible victims is too broad. 

California court of appeals reaffirms view that universities do not have a duty to protect adult students from violent acts of other students

A couple of weeks ago, a California appeals court issued an opinion (with one dissenting judge) reaffirming the generally accepted view that state public colleges and universities do not have a general duty to protect adult students from violent acts by other students.  Obviously, with so many frequent stories of violence on college campuses, the question of whether an institution of higher education can be liable is important and timely. The case is called Regents of the University of California v. Superior Court of Los Angeles County and you can read the opinion here. 

The case involved a claim by a former student at the University of California at Los Angeles who in 2009 was stabbed by a fellow student in a chemistry lab. The suit charged that UCLA didn't do enough to protect students, even as it learned of the serious mental health issues faced by the student who committed the stabbing.

Finding that there is no general duty to help the court ruled that "While colleges and universities may properly adopt policies and provide student services that reduce the likelihood such incidents will occur on their campuses, they are not liable for the criminal wrongdoing of mentally ill third parties, regardless of whether such conduct might be in some sense foreseeable."

This approach is not surprising and appears to be the majority view on the issue, whether because the conduct of the actor is considered a superseding cause or whether because of the long standing (although often criticized) rule that there is no duty to help.

The dissenting opinion, however, argued that the University should be subject to liability because it had adopted a duty to help.  The dissenting judge quoted from university materials distributed to students and parents that included statements like "Welcome to one of the most secure campuses in the country."  The dissenting judge also pointed out that "[o]ther promotional materials assure prospective students and their families that ‘UCLA is committed to maintaining a safe and respectful learning environment and takes an unwavering stand against any act that violates the True Bruin values.’"  Based on these statements, the dissenting judge argued, parents and students are entitled to expect that the university would provide better safety measures.

The dissenting judge also argued that the university could be subject to liability under the exception to the no duty rule based on "special relationships."  Traditionally limited to common carriers or innkeepers, courts in many jurisdictions have disagreed on whether to expand the notion of a special relationship to include other types of relationships.  Again, many have held that the relationship between a university and its adult students should not be included within the exception, even if that of an elementary school and its students has been.  Usually, the fact that students in an elementary school are minors who are not entirely equipped to defend themselves and who are not as mature as adults justifies the distinction.

The dissenting judge, however, thought that this distinction should not be given as much weight as it has in the past saying that "I would find such a special relationship exists between a college and its enrolled students, at least when the student is in a classroom under the direct supervision of an instructor..."  In such cases, the dissenting judge would find that "the school has a duty to take reasonable steps to keep its classrooms safe from foreseeable threats of violence."

Inside Higher Ed has more on the story here.

Follow up on story re vaccines

Just to follow up on my posts regarding possible liability on parents who fail to vaccinate children, here are a few update on related issues.

On June 25, the California State Assembly passed SB 277, a bill mandating that children in day care or school be vaccinated. The bill eliminates the personal-belief and religious exemptions, leaving intact only the medical exemption.  See here, here, here and here.

Five days later, the Governor signed the bill into law.  See here and here.