When Must a University Protect a Student from Harm Inflicted by a Third Party?

From the Desk of Brian Schiewe:

Generally, there is no duty to protect others from harm, including harm caused by the conduct of a third party. A duty may arise, however, when one has a special relationship with a potential victim or wrongdoer. The Supreme Court of Washington recently decided that universities have a special relationship with their students, but that universities only have a duty to protect students when on campus or participating in school sponsored activities.

Claims Pointer:

The Supreme Court of Washington, answering certified questions from the Ninth Circuit Court of Appeals, determined that a university has a special relationship with students, which imposes a duty to protect its students from harm inflicted by third parties when those students are on campus or are participating in school-controlled activities.

Barlow v. State, 540 P.3d 783 (Wash. 2024).

Facts:

Plaintiff was a freshman living on the Pullman campus at Washington State University (“WSU”) when another WSU student raped her at a party in his off-campus apartment.

Before transferring to the Pullman campus, the student was at WSU’s Vancouver campus, where WSU received two complaints of sexual misconduct against him. Based on its investigation of these complaints, WSU’s Office of Student Conduct concluded that this student had violated the student conduct codes for sexual misconduct. Subsequently, he was suspended for nine days and required to write a paper about consent.

While under investigation, the student requested a transfer to the Pullman campus, which WSU approved. Less than two weeks after his suspension, that student raped Plaintiff.

Plaintiff sued WSU, alleging WSU had a special relationship with its students—imposing a duty to control and protect its students—and that knowledge of the students’ past sexual misconduct made the harm to Plaintiff foreseeable.

The District Court granted WSU’s motion for summary judgment because the rape occurred off campus, and the school had no control or duty. Plaintiff appealed, and the Ninth Circuit certified two questions about the negligence claim to the Supreme Court of Washington: (1) Does Washington law recognize a special relationship between a university and its students, giving rise to a duty to use reasonable care to protect students from foreseeable injury at the hands of other students; and (2) if so, what is the measure and scope of that duty?

Law:

Again, absent a special relationship, there is generally no duty to protect someone from harm inflicted by a third party. But, The Restatement (Second) of Torts creates a kind of special relationship between a possessor of land and a business invitee. The possessor must exercise reasonable care to “(a) discover that such acts are being done or are likely to be done, or (b) give warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.” Id.

Washington Courts have found special relationships in other various contexts. For example, with reference to Restatement (Second) of Torts § 320, the Supreme Court of Washington concluded K-12 schools have a special relationship, stemming from the school’s care and custody of the student, the fact that school attendance is compulsory, and the protective custody teachers assume as a mandatory substitution for parents. McLeod v. Grant County Sch. Dist. No. 128, 42 Wn.2d 316, 319-20, 255 P.2d 360 (1953).  

A special relationship creates a heightened duty under Restatement (Second) of Torts § 315(b) to protect someone when that person is “helpless, totally dependent, or under the complete control of someone else for decisions relating to their safety.” Turner v. Dep’t of Social & Health Servs., 198 Wn.2d 273, 286-87, 493 P.3d 117 (2021). A group home’s special relationship with a vulnerable adult in its care, for example, is based on the vulnerable person’s total dependence on the group home and inability to care for herself. Niece v. Elmview Group Home, 131 Wn.2d 39, 46-47, 50, 929 P.2d 420 (1997).

A special relationship with a wrongdoer arises: (1) where the harm is foreseeable and “a definite, established, and continuing relationship exists between the defendant and the [wrongdoer]”; or (2) where the defendant has the ability to control the wrongdoer, such as a parole officer/parolee relationship. Volk v. DeMeerleer, 187 Wn.2d 241, 256, 264, 386 P.3d 254 (2016).  

Analysis:

The Supreme Court of Washington concluded that a university has a special relationship with its students, but that such a relationship only imposes a duty when a student is on campus or participating in a university-controlled activity.

The Court based this special relationship on Restatement (Second) of Torts § 344, which imposes a duty on a university, “as a business operator and possessor of land,” to protect students as business invitees.

In reaching its decision, the Court rejected three of Plaintiff’s arguments for a special relationship that would have imposed an obligation on WSU to protect her from the other student, even when off campus.

First, the Court rejected Plaintiff’s argument for an expansion of the common law duty for K-12 schools to protect their students. Washington case law that imposed a duty on K-12 schools relied “on the nature of the relationship, where K-12 schools have almost complete control over their students and their activities.” K-12 students must attend school, and K-12 schools generally have closed campuses, with more ability to exclude the public. A K-12 student’s time is structured, controlled, and monitored by the school, and the school takes custody of the student, “standing in as [a] parent[] during the school day.” It is this control that “gives rise to the duty that the school owes children.”

Universities, in contrast, do not have the same “protective custody over their adult students.” Attendance at a university is voluntary, and students choose their classes and how to spend their time outside of class. A university simply lacks “the requisite control over students’ decisions” that would impose a duty like that imposed on K-12 schools.

Next, Plaintiff argued for the Court to apply the duty to protect vulnerable people under Restatement (Second) of Torts § 315(b) to universities. The Court noted, however, that the duty imposed by § 315(b) applies to limited circumstances, where a person is helpless, totally dependent, or completely under the control of someone else. The Court determined that the relationship between a university and its students lacks the requisite level of dependence and control for a heightened duty to exist under § 315(b).

Third, the Court rejected Plaintiff’s argument that a special relationship existed between the university and the student who raped her. The university-student relationship would not provide a university with sufficient insight into the dangerousness of a student, or help identify potential victims, and the relationship does not grant sufficient control over a potential wrongdoer.  

Ultimately, the Court concluded that a university simply has no ability to control off-campus, non-school-sponsored interactions, and therefore, its duty is limited to on-campus, or school-sponsored activities.

Big Picture:

Washington law now recognizes a special relationship between a university and its students. However, a university’s duty to protect a student from harm inflicted by third parties exists only when the student is on campus or participating in school-controlled activities.  Had the Court found that there was a duty and ultimately determined that the university violated its obligations, this ruling could have broader implications to similarly situated institutions with similar special relationships, such as employers who hire summer interns.  But for now, any generalized application outside a university setting will have to be decided by future litigation.