Strangely worded opinion in Indiana recognizes cause of action for emotional distress resulting from sexual abuse of a child, ... maybe?

A few days ago, the TortProf Blog reported that "[t]he Indiana Supreme Court has extended negligent infliction of emotional distress."  In K.G. v. Smith, 2021 WL 6063878, at **1, 8, 2021 Ind. LEXIS 775, at *2, 23-24 (Ind. 2021), the court apparently recognizes a cause of action for the parents of a child who claim emotional distress from learning that a caretaker for their child sexually abused the child.  However, the opinion is very awkwardly worded.  It states that 

"[W]hen a caretaker assumes responsibility for a child, and when that caretaker owes a duty of care to the child's parent or guardian, a claim against the caretaker for the negligent infliction of emotional distress may proceed when the parent or guardian later discovers, with irrefutable certainty, that the caretaker sexually abused that child and when that abuse severely impacted the parent or guardian's emotional health.”; “To satisfy this rule, the parent or guardian must show (A) that the tortfeasor had a duty of care to the parent or guardian; (B) that there is irrefutable certainty of the act's commission; (C) that the tortious act is one rarely, if ever, witnessed by the parent or guardian; and (D) that the abuse severely impacted the parent or guardian's emotional health."

Here is my problem with this.  Notice how the court does not say that the caretaker owes a duty to the parents.  It says that IF the caretaker owes a duty to the parent.  This means that to support a prima facie case, the parents will have to convince the court that the caretaker owes them a duty.  And, the parents will have to do this in addition to meeting all the other elements of the cause of action.  

In other words, the key here is that the parents have to show that the caretaker owed them a duty, but the court does not say how a parent can satisfy the element of duty in such a case.   Unless I am missing something, this adds nothing to what we already knew.  To have a cause of action, the plaintiff always has to show the element of duty.

My guess is that the parents will have to find a way to convince the courts to adopt the view of the Restatement 3d §47(b) which recognizes a possible claim for negligent infliction of emotional distress based on the relationship between the parties.  

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.

Snapchat Ends 'Speed Filter' That Critics Say Encouraged Reckless Driving

 Last month I reported that the 9th U.S. Circuit Court of Appeals had issued an opinion holding that the parents of a teenager killed in a traffic accident could sue Snapchat based on the argument that Snapchat's speed filter entices young people to drive at astounding speeds.

Today I am writing about this because NPR is reporting that Snapchat is eliminating a feature known as the "speed filter" that lets users capture how fast they are moving and share it with friends. 

You can read the story on NPR here.

Court of Appeals for the 9th Circuit recognizes cause of action against Snapchat

A three-judge panel of the 9th U.S. Circuit Court of Appeals recently decided that the parents of a teenager killed in a traffic accident can sue Snapchat based on the argument that Snapchat's speed filter entices young people to drive at astounding speeds.

The decedent and two other teenagers were driving at over 120 miles an hour and wanted to capture the experience using an app feature called "speed filter" which documents real-life speed.  After one of them opened and started using the app, the driver lost control of the car and hit a tree.  All three died in the crash.

This type of allegation is not new.  It was the same type of allegation used in cases involving people playing "Pokemon Go" (remember that craze?). I posted a podcast on those claims back in 2016 here.

Other cases have found against the sender of a text which distracts a driver.  For example, see here, and here.

So, the plaintiffs' argument that the app "entices" young people to do stupid or dangerous things is not new; but it is not an easy one.  First of all, there is the issue of whether the conduct of one of the kids should be considered a superseding intervening cause.  Was the goal of the joy ride to use the app?  Or did they decide to use it after they were already driving fast?

Also, and even more problematic for the plaintiffs is the issue of comparative negligence, or assumption of the risk (if the jurisdiction still recognizes it as a defense).  If the jurisdiction is a modified comparative negligence jurisdiction, the defendants will argue that the plaintiffs' negligence should defeat the cause of action. 

What is most interesting about this case is that the plaintiffs argued the case as a products liability case while the defendant tried to defend the case by arguing it is protected from liability by the Communications Decency Act.

According to Courthouse News, the Ninth Circuit’s rejection of the defendant's attempt to hide behind the Communications Decency Act is the second opinion by an appellate court.  The other one was the Georgia Court of Appeals which rejected virtually identical arguments made by Snap in another Speed Filter case.  NPR has more on the case here.

The case is called Lemmon v. Snap, Inc, and you can read the opinion 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...

Cause of action for second hand Covid?

Back in 2016, there were a number of multi-million dollar verdicts in cases involving second hand exposure to asbestos that addressed the issue of whether an employer should be liable to the family members of an employee who brought home asbestos on their clothes.  See here, here, here and here.

The same issue is now back in the news thanks to a a couple of lawsuits filed by the spouses of people who contracted COVID-19 at work and then infected the plaintiffs' at home.

As I explained back then, in the asbestos cases, defendants typically would argue that liability should be limited to the injury to the person who was exposed directly.  Otherwise, any bystander who came in contact with this person could sue.   

It is not a frivolous argument, but courts in the asbestos cases were able to avoid it by limiting possible liability to the spouses of the workers who had been directly exposed to asbestos.

According to this story in the ABA Journal, two complaints arguing COVID related injuries have been filed already and more are expected. 

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.

Recent Tennessee case holds suicide is a superseding cause

A couple of days ago I posted a comment about a couple of recent claims based on deaths by suicide.  Sadly suicide is a serious health issue.  There are over 40,000 suicides a year in the U.S., making suicide the tenth-leading cause of death in the country, which raises an interesting question for courts:  if the risk of suicide is known, can it be said that someone committing suicide is always unforeseeable?

I have published many stories on the issues raised by claims based on suicide over the years.  You can go here and scroll down to read them.  In a recent one I commented on an article that argues it is time to change the way courts approach suicide as a superseding cause that eliminates the right of a plaintiff to recovery -- a view I happen to agree with.

I am writing about this today because I just read about a new opinion out of Tennessee that provides the most recent and fairly comprehensive discussion on whether the act of committing suicide should be considered to be a superseding cause.  The case is called Cotten v. Wilson and you can read the opinion here.

As you may know already, some jurisdictions consider suicide a superseding cause per se, in all cases, while others presume it is a superseding but would consider evidence to support the claim that the presumption should be defeated.

Tennessee appears to be in the second camp.  According to the case, courts in Tennessee have generally held that suicide will be deemed a superseding cause of death if it was ‘a willful, calculated, and deliberate act of one who has the power of choice based on the notion that no reasonable person could foresee that a rational person would intentionally choose to commit suicide. But, courts would consider the conduct foreseeable under different circumstances including (1) where it is reasonably foreseeable that the defendant’s conduct will cause a mental condition in the decedent that would lead to the self-destructive act, (2) where the suicide occurs in a custodial context, (3) where there was a special relationship between the defendant and decedent, and (4) situations in which the defendant facilitated the suicide by supplying the decedent with the means to carry it out.

The case involved a woman and a psychiatrist who had been in a relationship.  The psychiatrist knew that the woman had attempted to commit suicide in the past, but nevertheless allowed her to stay in his home alone with an unsecured gun.

It seems to me that it is not too far fetched to argue that suicide could be considered to be foreseeable under those circumstances.  Yet, the Tennessee Supreme Court dismissed the claim holding that the “suicide constitutes a superseding intervening event that breaks the chain of proximate causation.”  One judge filed a dissenting opinion, which you can read here.

Utah holds criminal defendant does not have to show actual innocence to support malpractice claim against lawyer

As you probably know, jurisdiction are divided on the issue of whether a convicted criminal defendant should be required to show actual innocence as a requirement to support a malpractice claim against his or her former criminal defense lawyer.

I recently wrote that Mississippi and Kentucky adopted an exoneration requirement, while Iowa and Idaho rejected it.  (For more stories on the issue, go here and scroll down.)

Today I am writing about this because I just read that the Utah Supreme Court has affirmed and clarified its holding that a criminal defendant can sue counsel for malpractice without proving actual innocence in a case called Paxman v King, available here.

The Legal Profession Blog has more details here.

Should a doctor be subject to liability to non-patients who suffer an injury because of negligence toward a patient?

Suppose a doctor misdiagnoses a contagious condition on a patient, and the patient then causes an injury to a third person.  Should the third person have a cause of action against the doctor?  This is a question that has been addressed by a number of cases, many of them involving sexually transmitted diseases.

Now, in a case called Jane Doe v Charles Cochran, available here, the Connecticut Supreme Court has held that a doctor may be liable to a third party infected with an STD after the doctor had mistakenly informed the patient he was free of infection.

Two judges dissented, here, arguing that it is wrong to extend the duty of the doctor to include non-patients.

Debate about safety netting around baseball parks continues

One of the more talked about themes during this baseball season is the increased amount of home runs (and the speculation that it has something to do with the way baseballs are manufactured).  Another continues to be the debate about whether baseball parks should extend the protective netting along the baselines.

If you are a baseball fan, you know that baseball parks offer safety netting to protect fans close to home filed from foul balls, errant throws and bats flying into the stands. Traditionally, the netting extends from just about half way to first base to about half way to third base.  

Yet, last year, in response to a number of incidents in which spectators were seriously hurt by foul balls along the baselines beyond the ends of protective netting some ballparks decided to extend the netting further down along the baselines.

Unfortunately, this season has already seen several such accidents and the debate about the netting has reignited.  Here in Chicago, at least two star Cubs players (Javier Baez and Kris Bryant) have called for the use of more netting.  

As you probably know, spectators usually do not have a remedy in tort available because of the so called "baseball rule" which is essentially a derivation of the notion of assumption of the risk.  I have argued the use of the rule is inconsistent with general principles of tort law, but it continues to be applied in many jurisdictions.  (Idaho is one which has refused to adopt it. See here.)   For some of my comments on the rule in general, go here, here and here.  For my posts on this and other topics related to baseball go here.

NPR recently posted a short radio segment on the issue.  You can listen to it below, or you can read the full story here.  It includes a video of one of the recent incidents (I also included it below).  It does NOT show the fan (in this case a young child) getting hit.  What it shows is the reaction of the players on the field.  Notice the reaction of the catcher the moment the ball goes into the stands; while the batter needed to be consoled by teammates and his manager.

Alaska reiterates its approach to bystander emotional distress claims, which is very different than the one used in most other jurisdictions

As you probably know, back in 1968 the California Supreme Court created what has now become the majority approach to claims by people who suffer emotional distress at witnessing injuries suffered by others.  According to that approach, the claim is limited to plaintiffs who are closely related to the victim, are present at the scene of the accident and who have a contemporaneous sensory observance of the accident.  Someone who is told about an accident after it happens or who arrives at the scene only to observe the aftermath, would not have a claim.

Alaska, however, never adopted the requirement of the contemporaneous sensory observance.  According to this approach, the plaintiff can support a claim as long as he or she is a close relative of the victim and that, under the circumstances, it is reasonably foreseeable that the plaintiff would suffer emotional distress.  This means the notion of duty in Alaska in these types of cases is broader and defendants are exposed to liability in many more cases.

I am writing about this today because I just read that the Alaska Supreme Court has again reiterated its approach to this issue in a new case called Doan v. Banner Health, Inc., (available in Westlaw at 2019 WL 2312537).

In this case, a mother, who was in a hospital waiting room when her daughter died, brought a NIED claim against medical providers for the distress she suffered upon seeing her daughter’s body. 

This claim would have been rejected in any state that follows the California approach and, obviously, in all states that reject it in favor of the "zone of danger" approach.  To my knowledge, this leaves only Alaska and Puerto Rico.

Thanks to the TortsProf blog for the update.

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.

Mississippi and Kentucky adopt exoneration requirement for malpractice claims against criminal defense attorneys

Some jurisdictions have recently abandoned the view that a convicted criminal defendant who wants to recover for malpractice against his or her former lawyer has to prove that he or she was actually innocent of the crime for which they were convicted.  My most recent post on this is here.   Some of those, however, still require that the plaintiffs show they were exonerated through the criminal process (or what some call "post conviction relief").  In other words, in cases in which a convicted defendant wants to sue a former lawyer alleging they would not have been convicted but for the negligence of the lawyer there are three approaches:  requiring that the defendant show actual innocence, requiring that the defendant show post conviction relief (but not necessarily innocence) and not requiring anything other than the typical elements of a torts claim.

In two recent decisions, the Supreme Courts of Mississippi and Kentucky have decided to adopt the approach that requires "exoneration" for the malpractice claim to proceed.

The case in Mississippi is called Trigg v. Farese, and you can read the opinion here.  In it, the court concludes that "We join the substantial majority of courts in holding that, because these allegations would entitle the plaintiff to relief from his underlying conviction, he must first pursue them through the criminal-justice process. In other words, a convict must “exonerate” himself by obtaining relief from his conviction or sentence before he may pursue a claim against his defense attorney for causing him to be convicted or sentenced more harshly than he should have been. To the extent prior decisions of this Court or the Court of Appeals suggest otherwise, they are overruled."

The case in Kentucky is called Lawrence v. Bingham, Greenbaum,Doll, LLP, and you can read the opinion here.  In it, the court adopted the following articulation of the Exoneration Rule: "to survive a motion to dismiss for failure to state a claim in a professional malpractice case against a criminal defense attorney, the convicted client must plead in his complaint that he has been exonerated of the underlying criminal conviction. He or she need not prove actual innocence, but they also may not rely solely upon a claim of actual innocence in the absence of an exonerating court decision through appeal or post-conviction order. Further, the statute of limitations on the legal malpractice claim does not begin to run until the postconviction exoneration occurs."

Supreme Court hears oral argument in asbestos case under maritime law

A couple of weeks ago, the US Supreme Court heard oral arguments in a case that raises basic principles of tort law as related to maritime jurisdiction.  The case involves equipment that depended on asbestos insulation sold by various manufacturers that was installed many years ago on Navy ships.  The plaintiffs are a group of sailors injured by the asbestos used with the equipment. Because the injuries in question occurred at sea it arises under the general “maritime” law, judge-made federal law for which the Supreme Court is the final authority. The lower court found that the manufacturers could be liable because the injuries were foreseeable. 

The SCotUS blog has analysis here.  You can also access all the relevant documents in the case here.

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.

Iowa Supreme Court finds that proof of exoneration is not necessarily required for a convicted defendant to sue for legal malpractice

In a many jurisdictions, a convicted criminal defendant who wants to recover for malpractice against his or her former lawyer has to obtain post conviction relief and prove that he or she was actually innocent of the crime for which they were convicted. This view has been criticized but still appears to be the majority view. Yet, a number of jurisdictions have recently decided otherwise.

Back in 2016, I reported that the Iowa Supreme Court decided actual innocence is no longer required as an element of the cause of action; and I just saw that it recently reaffirmed this new approach in a case decided this year.  Here is the story which includes a link to the opinion.

Other jurisdictions that have held innocence is not a requirement include Washington, Kansas (also here) and Idaho.

UPDATE (4/15/2018):  Thanks to Patrick J. Olmstead, Jr. who wrote to me to let me know that the Indiana Court of Appeals also abandoned the actual innocence requirement in a case called Beal v. Blinn, 9 N.E.3d 694 (2014).

Injured Spectator vs The Chicago Cubs; Will This Be the Case That Establishes a New Rule? -- UPDATED

October 17, 2017
Readers of this blog probably saw the news that a baseball fan has sued the Chicago Cubs seeking compensation for the loss of sight in his left eye after he was hit by a foul ball during a Cubs game earlier this year.  This question has been litigated many times in many jurisdictions and, as it stands right now, the law favors baseball stadium owners.

In most cases, the discussion of the courts has focused on either whether the defendants have a duty to the spectator or whether the spectator assumed the risk of injury by choosing to sit close to the field.  Often, whether the issue is defined as the former or the latter, court and commentary refer to the analysis as one involving "the baseball rule," which is really a reference to the result of the application of the analysis. The case against the Cubs is different, however, because in Illinois, there is a specific statute that limits the possible liability of baseball stadium owners.

I wrote a short comment on this a few days ago in The John Marshall Law School Law Review blog.  You can read it here.

UPDATE (3-21-18):  Earlier this month, the court dismissed the claim against the Cubs but allowed the case to proceed against Major League Baseball.  The Chicago Daily Bulletin has the story.