2003 WL UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING. Superior Court of Connecticut, Judicial District of Waterbury.

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1 2003 WL UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING. Superior Court of Connecticut, Judicial District of Waterbury. Jason McCLURE, v. FAIRFIELD UNIVERSITY. No. CV June 19, Attorneys and Law Firms Moore O Brien Jacques & Yelenak, Cheshire, for Jason McClure. Ryan Ryan Johnson & Deluca LLP, Stamford and Owens Schine & Nicola PC, Trumbull, for Fairfield University. Opinion GALLAGHER, J. *1 The plaintiff, Jason McClure, brought this action against the defendant, Fairfield University, for injuries he suffered in a pedestrian-automobile accident. The complaint alleges that the defendant was negligent in that it failed to enforce rules regarding alcohol consumption and to provide adequate transportation to students between the campus and Fairfield Beach. 1 The plaintiff seeks damages for his injuries. The defendant moves for summary judgment on the ground, that there are no genuine issues of material fact in dispute and it is entitled to judgment as a matter of law because it did not owe any duty to the plaintiff. beach. The driver had also been drinking, and was returning to the beach from campus when the accident occurred. The beach is located approximately 2 miles from the university campus, where about 15-20% of the undergraduate students live. DISCUSSION Practice Book provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party... The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. (Citation omitted; internal quotation marks omitted.) LaFlamme v. Dallessio, 261 Conn. 247, 250, 802 A.2d 63 (2002). A defendant s motion for summary judgment is properly granted if it raises at least one legally sufficient defense that would bar the plaintiff s claim and involves no triable issue of fact. (Internal quotation marks omitted.) Perille v. Raybestos-Manhattan-Europe, Inc., 196 Conn. 529, 543, 494 A.2d 555 (1985). According to the defendant, summary judgment is appropriate because it had no duty to protect the plaintiff from injuries that occurred while the plaintiff was returning to campus after attending a private, off-campus party. The defendant argues that the residences at the beach were private residences and in no way related to any Fairfield University event or organization and that the University did not sponsor or sanction the parties. According to the defendant, because the University did not owe the plaintiff a duty, it cannot be liable in negligence for his injuries. STATEMENT OF FACTS On September 12, 1998, the plaintiff was a 19-year-old freshman at Fairfield University. He alleges that, on that date, he was walking on Reef Road at approximately 1:43 in the morning when he was struck by a car driven by Colleen Capuzzi, another student at Fairfield. Hours earlier, the plaintiff and a number of his friends had left the Fairfield University campus to attend private parties at various residences located on or near the Fairfield town *2 The existence of a duty of care is a prerequisite to a finding of negligence... [T]he essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury... The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant [breached] that duty in the particular situation at hand... If a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant. (Citations omitted; internal quotation marks 2014 Thomson Reuters. No claim to original U.S. Government Works. 11

2 omitted.) Gomes v. Commercial Union Ins. Co., 258 Conn. 603, , 783 A.2d 462 (2001). A duty to act with reasonable care to prevent harm to a plaintiff which, if violated, may give rise to tort liability is based on a special relationship between the plaintiff and the defendant. A duty to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act. (Citations omitted; internal quotation marks omitted.) Burns v. Board of Education, 228 Conn. 640, 646, 638 A.2d 1 (1994). A simple conclusion that the harm to the plaintiff was foreseeable, however, cannot by itself mandate a determination that a legal duty exists. Many harms are quire literally foreseeable, yet for pragmatic reasons, no recovery is allowed... A further inquiry must be made, for we recognize that duty is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection... While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world... The problem for the law is to limit the legal consequences of wrongs to a controllable degree... The final step in the duty inquiry, then, is to make a determination of the fundamental policy of the law, as to whether the defendant s responsibility should extend to such results. (Internal quotation marks omitted.) Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 633, 749 A.2d 630 (2000). [T]he test for the existence of a legal duty of care entails: (1) a determination of whether an ordinary person in the defendant s position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of public policy analysis, of whether the defendant s responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case... The first part of the test invokes the question of foreseeability, and the second part invokes the question of policy. (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 250, 765 A.2d 505 (2001). *3 While the issue of what, if any, duty the University owed to the plaintiff to protect him from an accident that occurred while he was returning from an off campus party where underage students were drinking alcohol is one of first impression in the state of Connecticut, other jurisdictions have considered similar issues. The defendant cites Bradshaw v. Rawlings, 612 F.2d 135 (3rd Cir1979), cert. denied, Doyleston v. Bradshaw, 446 U.S. 909, 100 S.Ct. 1836, 64 L.Ed.2d 261 (1980), as the seminal case on the subject. In Bradshaw, the Third Circuit Court of Appeals held that a college may not be subject to tort liability for injuries sustained by a student that was involved in an automobile accident where the driver of the car was another student who had become intoxicated at a university sponsored class picnic. Id., 144. [The plaintiff s] primary argument is that the college had knowledge that its students would drink beer at the picnic, that this conduct violated a school regulation and state law, that it created a known probability of harm to third persons, and that knowledge by the college of this probable harm imposed a duty on the college either to control [the driver s] conduct or to protect [the plaintiff] from possible harm. Id., 141. [T]he competing interests of the student and of the institution of higher learning are much different today than they were in the past. At the risk of oversimplification, the change has occurred because society considers the modern college student an adult, not a child of tender years. It could be argued... that an educational institution possesses a different pattern of rights and responsibilities and retains more of the traditional custodial responsibilities when its students are all minors, as in an elementary school, or mostly minors, as in a high school... But here, because the circumstances show that the students have reached the age of majority and are capable of protecting their own self interests, we believe that the rule would be different. (Citations omitted.) Id., 140. The court noted that while the legal drinking age in Pennsylvania was 21, that in the majority of U.S. states it was only 18, and stated that it would be placing an impossible burden on the college to impose a duty in this case. Id., 142. [W]e conclude that [the plaintiff] failed to establish a prima facie case against the college that it should be charged with a duty of custodial care as a matter of law... Id., 143. The defendant also cites Beach v. University of Utah, 726 P.2d 413 (Utah, 1986), in which the Supreme Court of Utah refused to impose a duty on a University where an intoxicated student sustained injuries after falling from a cliff during a university sponsored field trip. The law imposes upon one party an affirmative duty to act only when certain special relationships exist between parties. These relationships generally arise when one assumes responsibility for another s safety or deprives another of his or her normal opportunities for self-protection... The essence of a special relationship is dependence by one party upon the other or mutual dependence between the 2014 Thomson Reuters. No claim to original U.S. Government Works. 12

3 parties. (Citation omitted.) Id., The court relied on the reasoning set out in Bradshaw, and concluded that no special relationship existed between the parties requiring the university to protect [the plaintiff] from the consequences of her voluntary intoxication. Id., 414. *4 In addition, the defendant cites Rabel v. Illinois Wesleyan University, 514 N.E.2d 552 (Ill.App.Ct. 4th Dist.1987), appeal denied, 520 N.E.2d 392 (Ill.1998), in which the plaintiff sued her university in negligence after she was physically taken from her dorm and injured by a drunken fraternity member. She claimed that the university had a duty to protect her from the misconduct of fellow students due to a special relationship. Id., The court, relying on Bradshaw and Beach, held that the university s responsibility to its students, as an institution of higher education, is to properly educate them. It would be unrealistic to impose upon a university the additional role of custodian over its adult students and to charge it with the responsibility for assuring their safety and the safety of others. Imposing such a duty of protection would place the university in the position of an insurer of the safety of its students. Id., The plaintiff in the present case argues that a duty should be imposed based on traditional tort law principles, because the accident was foreseeable. In support of his argument, the plaintiff has provided evidence that a substantial number of Fairfield University students lived in the beach area (Plaintiff s Memorandum, Exhibit D, Deposition of Mark Reed, dated June 26, 2002, pp. 8-9; Exhibit B, Deposition of William P. Schimpf, dated October 11, 2002, pp ); and that while the beach area housing was not part of the Fairfield University campus, the school made information about such housing available to students in the student housing binder (Schimpf deposition, pp ; Exhibit G, Student Housing Binder). The plaintiff has also provided evidence that students frequently attended parties at the beach where alcohol was served (Plaintiff s Memorandum, Exhibit A, deposition of Jeffrey McClure, dated January 18, 2001, pp ); and that the university administration was aware of this and monitored such activities at the beach by receiving weekly police blotters (Schimpf deposition, pp. 45, 52-53, , 146). In addition, while the university had an alcohol policy, which applied to all students, both on and off campus; (Schimpf deposition, p. 76); it did not attempt to enforce its rules against students at the beach area (Reed deposition, pp ). Finally, since before 1998, the student government has provided a Safe Rides program using university-owned vans to transport students from the beach area to campus late at night on Thursday, Friday and Saturday nights, in response to concern about student safety. (Schimpf deposition, pp ) This service, however, was limited only to those times when student volunteers were available to drive the vans. (Schimpf deposition, pp. 99, 147.) The plaintiff argues that the university knew that students frequently attended parties at the beach area where they would drink alcohol, that some students would walk to and from the beach area after drinking, and that some students would drive home from the beach area after drinking. In addition, the plaintiff argues that the University s strict enforcement of the drinking age on campus but not at the beach actually encouraged underage students to go to there to drink alcohol. The plaintiff further argues that the University recognized the need for transportation between the campus and the beach area, but that such transportation was not adequately provided. For these reasons, the plaintiff argues that it was foreseeable that a student would be injured by another student who was driving between the campus and the beach area while intoxicated, and that it therefore had a duty to protect him. Additionally, the plaintiff argues that even if no duty originally existed, the University by its conduct had assumed a duty to provide transportation to and from the beach area. *5 In support of its argument, the plaintiff relies on Furek v. University of Delaware, 594 A.2d 506 (Del.1991). In that case, a student who was injured in a fraternity-hazing incident sued the university alleging that it had negligently failed to control the fraternity and its members. Id., 511. In its motion for summary judgment, the University claimed that it had no duty to protect the plaintiff and that he had assumed the risk of injury by engaging in hazing. Id. The Superior Court, relying upon 315 of the Restatement of Torts, determined that the University had a duty to protect Furek through its control of the fraternity. In view of its knowledge of the dangers of hazing on its campus, Furek s claim against the University stated a cause of action as a matter of law. Id., Following trial, the University moved for a judgment n.o.v., arguing that based on the evidence, no duty could be imposed on it, and the court agreed. See Furek v. University of Delaware, Del.Super.Ct., C.A. No. 82C-SE-30, Poppiti, J. (December 23, 1987). On appeal from the lower court s granting of judgment n.o.v., the defendant argued that it had no duty to protect the plaintiff, but the Supreme Court of Delaware did not agree. While we agree that the University s duty is a limited one, we are not persuaded that none exists. Id., 517. The Furek court considered and rejected the Bradshaw and Beach decisions along with other cases that rejected a 2014 Thomson Reuters. No claim to original U.S. Government Works. 13

4 duty to supervise, stating that they provide no empirical support for the proposition that supervision is inversely related to the maturation of college students. Aside from the opinion in Bradshaw, no legal or other authority is cited for the assertion that supervision of potentially dangerous student activities would create an inhospitable environment or would be largely inconsistent with the objectives of college education. It seems equally reasonable to conclude that university supervision of potentially dangerous student activities is not fundamentally at odds with the nature of the parties relationship, particularly if such supervision advances the health and safety of at least some students. Id., 518. Beach and Bradshaw may also be faulted on the logic of their analysis. In both cases, it was asserted that the major reason for the rejection of a university duty to supervise was that the students were responsible adults. In both cases, the injuries were alcohol-related. However in the area of activity that was the subject matter of the dispute, alcohol consumption, the students were unquestionably not deemed adults under the law since most, if not all, participants were below the drinking age. Id. In earlier times of strict university control, the institution was viewed as acting in loco parentis, i.e., the university exercised delegated parental authority with a concomitant duty of broad protection... The concept of university control based on the doctrine of in loco parentis has all but disappeared in the face of the realities of modern college life where students are now regarded as adults in almost every phase of community life... To the extent that the doctrine of in loco parentis is still viable, its application is limited to claims against high school authorities for injuries to students arising out of a failure to supervise. (Citations omitted; internal quotation marks omitted.) Id., The university contends that the demise of the doctrine of in loco parentis has dispelled the notion that any special relationship exists between the university and its student body upon which to posit any duty to protect students from activities of their fellow students. It is argued that the student and the university operate at arms-length, with the student responsible for dealing with other students or student groups... While we agree that the university s duty is a limited one, we are not persuaded that none exists. Id., 517. *6 A number of courts have examined whether a university s failure to supervise student activities could be deemed a breach of a duty arising from the student-university relationship. Some courts have been unwilling to impose liability because the university is not an insurer of its students safety, and the students are legally responsible adults who are able to take care of themselves. Thus, these courts have rejected both a duty under the in loco parentis doctrine and a duty of supervision... when one assumes responsibility for another s safety or deprives another of a normal opportunity for self-protection. Id. Cases subsequent to Bradshaw which rejected a duty to supervise seem to rely on the policy analysis set out in Bradshaw without considering the factual validity of its premises or the accuracy and consistency of its logic. [Another] court stated that taking away student s control over private recreational and personal safety choices would deprive students of their recently recognized authority in these areas. [That] court concluded that taking away this responsibility would produce a repressive and inhospitable environment, largely inconsistent with the objectives of modern college education. Id., 518. The court reasoned that, based on Restatement 323, [i]f one takes charge and control of [a] situation, he is regarded as entering into a relation which is attenuated with responsibility. Id., 520. The evidence in this record... strongly suggests that the University not only was knowledgeable of the dangers of hazing but, in repeated communications to students in general and fraternities in particular, emphasized the University policy of discipline for hazing infractions. The University s policy against hazing, like its overall commitment to provide security on its campus, thus constituted an assumed duty which became an indispensable part of the bundle of services which colleges... afford their students. (Internal quotation marks omitted.) Id. The university-student relationship is certainly unique. While its primary function is to foster intellectual development through an academic curriculum, the institution is involved in all aspects of student life. Through its providing of food, housing, security, and a range of extracurricular activities the modern university provides a setting in which every aspect of student life is, to some degree, university guided. This attempt at control, however, is directed toward a group whose members are adults in the contemplation of law and thus free agents in many aspects of their lives and life styles... Despite the recognition of adulthood, universities continue to make an effort to regulate student life and the courts have utilized diverse theories in attempting to fix the extent of the university s residential duty. Id., 516. The Furek court ultimately held that although the University no longer stands in loco parentis to its students, the relationship is sufficiently close and direct to impose a duty... The university is not an insurer of the safety of its students nor a policeman of student morality; nonetheless, it has a duty to regulate and supervise foreseeable dangerous activities occurring on its property Thomson Reuters. No claim to original U.S. Government Works. 14

5 That duty extends to the negligent or intentional activities of third persons. (Citation omitted.) Id., 522. Even though the policy analysis of Bradshaw has been followed by numerous courts, the justification for following that decision has seriously eroded by changing societal attitudes toward alcohol use and hazing. The likelihood of injury during fraternity activities occurring on university campuses is greater than the utility of the university inaction. The magnitude of the burden placed on the university is no greater than to require compliance with self imposed standards. Id., *7 The plaintiff also cites Mullins v. Pine Manor College, 449 N.E.2d 331 (Mass.1983), in which the Supreme Judicial Court of Massachusetts held that a college owed a duty of care to a student who was raped on campus. While the defendant argued that it did not have any duty to protect the plaintiff from the criminal acts of a third party, the court disagreed. The duty of care owed to the plaintiff by the defendants in the present case can be grounded on either of two well established principles of law. First, we have said that a duty finds its source in existing social values and customs... We think it can be said with confidence that colleges of ordinary prudence customarily exercise care to protect the well-being of their resident students, including seeking to protect them against the criminal acts of third parties... Of course, changes in college life, reflected in the general decline of the theory that a college stands in loco parentis to its students, arguably cut against this view. The fact that a college need not police the morals of its resident students, however, does not entitle it to abandon any effort to ensure their physical safety. (Citations omitted; internal quotation marks omitted.) Id., In addition, [i]t is an established principal that a duty voluntarily assumed must be performed with due care... Restatement (Second) of Torts 323 (1965), states: One who undertakes gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because of the other s reliance upon the undertaking. Id., The court reasoned that because the university provided security to the students due to foreseeable risks associated with its urban location, and because students relied on this service, the university could be required to use reasonable care to prevent injury to their students by third persons whether their acts were accidental, negligent, or intentional. Id., 54. present case in that the events in those cases occurred on campus. However, while the events in the present case occurred off campus, the university s providing information about the beach area housing in the student binder was an imprimatur. It was well known that students would attend parties at the beach residences where they would consume alcohol. When Bradshaw and Beach were decided, the legal drinking age in a majority of jurisdictions was 18 years of age. In Connecticut, the legal drinking age is presently 21 years of age, as it was at the time of the accident. A large percentage of university students are therefore below the age of majority with respect to the usage of alcohol. Student alcohol use has become an increasingly serious problem in recent years. The university has acknowledged this in that it has an anti-alcohol policy that applies to all underage students. While the university had knowledge that underage drinking frequently occurred at the beach area, it did nothing to enforce the policy there, which indirectly encouraged students to go to the beach area in order to drink alcohol. *8 The Safe-Rides program in which student volunteers used university-owned vans to provide rides to students traveling between the campus and the beach area on Thursday, Friday and Saturday nights was provided because of the concern for student safety. [Restatement] 323 addresses the duty owed by one who assumes direct responsibility for the safety of another through the rendering of services in the area of protection. As the Restatement makes clear, this section applies to any undertakings to render service to another which the defendant should recognize as necessary for the protection of the other person and the harm to be protected against results from negligence in performance of the undertaking or from failure to exercise reasonable care to complete it or to protect the other when he discontinues it. If one takes charge and control of [a] situation, he is regarded as entering into a relation which is attenuated with responsibility. (Citation omitted; internal quotation marks omitted.) Furek v. University of Delaware, supra, 594 A.2d 520. The shuttle service was limited to times when student volunteers were available to drive the vans, and was therefore not always available to students who attended parties at the beach area. Based on Restatement 323, the university, by offering the shuttle service, had assumed a responsibility for the safety of students while traveling between the beach area and the university campus. Under the circumstances, the university had a duty to protect students who traveled to and from parties at the beach area. Both Furek and Mullins are distinguishable from the 2014 Thomson Reuters. No claim to original U.S. Government Works. 15

6 CONCLUSION For the reasons stated above, the motion for summary judgment is denied. Parallel Citations Footnotes 1 Specifically, the plaintiff alleges that Fairfield University and its agents, servants and/or employees were negligent in that they: (1) failed to provide adequate transportation to on campus students to and from the beach area; (2) allowed, permitted and/or encouraged underage students to attend off campus parties where alcohol was being served; (3) failed to adequately supervise and/or monitor off campus drinking; (4) failed to adequately enforce the University s rules against underage drinking; (5) failed to provide adequate and/or appropriate security personnel; (6) failed to patrol the areas leading to and from the beach; (7) failed to provide students with a safe and secure environment; (8) failed to provide adequate on-campus housing; (9) failed to hold off campus students to the same standard of behavior as on campus students; (10) failed to have a visible presence off campus; and (11) failed to warn students, including the plaintiff, of the dangers associated with walking from the campus to the beach and from the beach to the campus, particularly during the late night and/or early morning hours. Complaint, 6. End of Document 2014 Thomson Reuters. No claim to original U.S. Government Works Thomson Reuters. No claim to original U.S. Government Works. 16