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.

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.

Utah Supreme Court strikes down law requiring "certificate of merit" in medical malpractice claims

Like many other jurisdictions, at some point, Utah enacted a statute that requires plaintiffs in medical malpractice cases to file a so-called "certificate of merit" when filing a medical malpractice lawsuit.  In some jurisdictions, the certificate is simply an affidavit by an expert supporting the conclusion that the claim has merit.  In Utah, the certificate of compliance is issued once Utah’s Division of Occupational and Professional Licensing (DOPL) reviews the malpractice claim and determines it has merit. If the claim is rejected by the DOPL, plaintiffs can still receive the certificate upon attestation of their claims by an expert.

I have never been in favor of this requirement which is an artificial burden on plaintiffs created to make more difficult for them to get access to the courts, but it has become a standard in many states.

So, today's news is that, somewhat surprisingly, Utah’s Supreme Court has unanimously struck down the statute that required the certificate of merit holding that the law was unconstitutional because it violated the separation of powers doctrine by limiting the role of the judiciary.

The case is called Vega v. Jordan Valley Medical Center, and you can read it here.

Utah Supreme Court holds that waivers signed by parents on behalf of children are not enforceable

Earlier this month I reported that the the Kentucky Supreme Court recently found that for-profit companies can be liable for injuries to minor children even if their parents signed a pre-injury waiver. See here.

Now comes news that, in a case called Rutherford v. Talisker Canyons Fin., Co., LC, 2019 WL 2710230, the Utah Supreme Court held that a parent cannot release his or her minor child's prospective claims for negligence unless this rule is altered by a statute enacted to make such releases enforceable.

Utah nurse who was unjustifiably arrested for refusing to comply with illegal order by police officer agrees to $500,000 settlement

You probably remember the story from a few months ago involving a police officer who arrested a nurse after she refused to draw blood from an unconscious patient because the police officer did not have a warrant.  The police officer arrested the nurse and placed her in a squad car for some time before releasing her.  A video of the incident went viral, and the story gained national attention.  Eventually, the police officer was fired.  Since then, the hospital changed its policies and no longer allows police officers access to patient care areas.

At the time, I remember thinking this seemed like an easy false imprisonment case.  And it now certainly looks like it was.  Just a couple of months removed from the incident, there is news that the nurse has agreed to a half a million dollar settlement.  

The ABA Journal has the story with links to more information.  Here is the original video:

Utah Supreme Court holds a person can sue herself under wrongful death and survival stautes

I recently read in the Legal Profession blog a summary of a recent decision out of the Utah Supreme Court with the oddest fact pattern I have seen all year, which provides an interesting discussion of issues related to the two courses I teach: Torts and Professional Responsbility.  The case is Bagley v. Bagley and you can read the full opinion here.

Here are the facts of the case: One day back in 2011, Ms. Barbara Bagley, the common law wife of Bradley Vom Baur, lost control of the car in which they were traveling. Mr. Vom Baur was thrown from the vehicle and sustained severe injuries due to which he died ten days later.  Eventually, in her dual capacities as sole heir and personal representative of the estate of Bradley Vom Baur, Ms Bagley sued herself in an attempt to compel her insurance company to indemnify her.  Ms. Bagley was, therefore, the plaintiff and the named defendant in the lawsuit at the same time. 

Plaintiff Bagley brought her first cause of action pursuant to Utah’s wrongful death statute, alleging that Defendant Bagley (herself) negligently caused Mr. Vom Baur’s death, thereby depriving his sole heir (ie, Plaintiff Bagley herself) of Mr. Vom Baur’s love, companionship, society, comfort, care, protections, financial support, pleasure, and affection.

Plaintiff Bagley brought her second cause of action as the personal representative of Bradley Vom Baur‘s estate pursuant to Utah’s survival action statute, alleging that Defendant Bagley negligently caused Mr. Vom Baur to experience pain and suffering prior to his death, which entitles Mr. Vom Baur’s estate to damages such as funeral expenses and medical bills.

The trial court granted a motion to dismiss, but the court of appeals reversed. 

On these facts and based on the Court’s interpretation of the plain language of the two statutes, the Supreme Court affirmed the court of appeals and held that the “wrongful death and survival action statutes permit a person acting in the legal capacity of an heir or personal representative to sue him or herself in an individual capacity for negligently causing a decedent’s death or injury.”

In the case before the Supreme Court Ms. Bagley as plaintiff and Ms. Bagley as defendant were represented by a different law firms, but the Utah Defense Lawyers Association filed an amicus curiae brief arguing that the case would have negative consequences on the practice of law and that it presented impermissible conflict of interest.  Among other things, the Association argued that the case “distorts the attorney-client relationship by creating a concurrent conflict of interest because “defense counsel’s representation of the client as the defendant is directly adverse to defense counsel’s representation of that same person who is also the plaintiff.”  It also argued that the conflict would affect an attorney’s ability to communicate with his or her client, because, among other things, the client knows that anything she reveals will be used against her.  Finally, the Association also raised concerns about jury confusion and the ability of an attorney to cross-examine his own client.

The Court admitted that the arguments “are not without merit” but dismissed them holding that the situation did not create a concurrent conflict because plaintiffs and defendant were acting “in different legal roles.”  (See footnote 37 of the opinion)

You can read the full opinion here.

Utah Supreme Court Holds Children Under the Age of Five Cannot Be Liable for Negligence

The Utah Supreme Court recently adopted a bright-line cutoff for liability for negligent children, setting the limit at 5 years old.  The case involved a 4 year old who threw a rubber dolphin at his babysitter.  Unfortunately, the dolphin hit the babysitter in the eye.  She had just had a cornea transplant and the accident blinded her.  The Volokh Conspiracy has the story.

Setting an age limit is not that unusual, but the age itself varies among states.  I have read somewhere that the more common age is 7, but I have not done the research to confirm it.  The Restatement (Third) of Torts suggests the age of 5, which is one of the reasons the Utah Supreme Court chose it.

One interesting thing about age cut offs is that the most famous case regarding intent (as an element for intentional torts) involved a 5 year old.  Remember  Garratt v. Dailey?  I am sure you read it in law school.  It's the case case about the 5 year old who pulls a chair out from under a woman who was about to sit down on it. 

Thanks to TortsProf for the information.