In Regents of University of California v. Superior Court (Rosen) (2d App.Dist., B259424, filed 12/3/18), the Second Appellate District held on remand from the California Supreme Court that the ordinary reasonable person standard of care governs a university’s duty to protect its students from foreseeable acts of violence. Applying the ordinary reasonable person standard, the court ruled triable issues of fact exist as to whether defendants breached their duty of care to the injured student/real party in interest, denying Regents’ petition for writ of mandate.
The Regents v. Superior Court (Rosen) decision is 10 years in the making. Real party in interest, Katherine Rosen, was a student at UCLA when she was attacked during a chemistry lab on October 8, 2009, by fellow student, Damon Thompson, who had been receiving treatment at UCLA for mental illness. Rosen sued Regents and several individual employees for negligence, alleging they failed to take reasonable measures to protect her from Thompson’s reasonably foreseeable violent conduct. Defendants moved for summary judgment on the ground post-secondary schools do not have a duty to protect their students from third party misconduct. The trial court denied the motion.
Defendants filed a petition for writ of mandate. A divided panel of the Second Appellate District granted the petition based on a finding of no duty, Rosen appealed. In Regents of University of California v. Superior Court (2018) 4 Cal.5th 607 (“Regents”), the California Supreme Court reversed, finding universities owe a duty to take reasonable steps to protect their students from foreseeable harm during activities tied to the school’s curriculum under the special relationship doctrine. According to the California Supreme Court, a plaintiff must prove three elements to establish breach of this duty:
- The injury occurred while engaged in activities that are part of the school’s curriculum or closely related to its delivery of educational services;
- The university had information that placed, or should have placed it on notice that the perpetrator presented a foreseeable threat of violence to other students. Foreseeability involves a two-part analysis (what information the university knew about the student in question and based on that information, was it foreseeable the student posed a threat of violence); and
- The university failed to act with reasonable care in response to the foreseeable threat of violence.
The California Supreme Court in Regents left open the question of the appropriate standard of care for judging the reasonableness of the university’s actions.
On remand, the Second Appellate District considered: (1) the standard of care; (2) whether triable issues of fact existed as to whether defendants breached their duty of care to Rosen; and (3) immunities.
With respect to the standard of care, the appellate court accepted Rosen’s argument that the ordinary reasonable person standard applied. It rebuffed defendants’ efforts to apply Civil Code section 43.92 to all defendants (other than the school psychologist). Civil Code § 43.92 was enacted to limit the liability of psychologists to cases in which a patient threatened violence against a reasonably identifiable person. The court reasoned the language used by the Regents court in its analysis was more consistent with the reasonable person standard than the narrow standard proposed by defendants. Additionally, the court noted the California Supreme Court previously held the ordinary reasonable person standard governs a secondary school’s duty to protect its students from foreseeable acts of violence. (See C.A. v. William S. Hart Union High School District (2012) 53 Cal.4th 861.) Regents discussed Hart with approval ruling the ordinary reasonable person standard also governs the duty of post-secondary schools.
The court sympathized with defendants’ arguments that the reasonable person standard of care made lay persons (e.g., professors, administrators) subject to a less stringent standard of care than mental health professionals and that the decision may result in an increased likelihood of students with mental illness being suspended or expelled, but found it to be within the province of the legislature to adopt a more stringent standard of care, as it did for mental health professionals after the Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425 decision when it adopted Civil Code § 43.92.
In addressing whether triable issues of fact existed as to whether defendants breached their duty of care to Rosen, the court looked at the three prongs enumerated by the California Supreme Court in Regents. The first prong of the test was satisfied as the incident occurred during an activity connected to curriculum, during a chemistry lab.
In evaluating the second prong, the court ruled Thompson’s known history of aggressive behavior, schizophrenia diagnosis, and treatment for mental illness at UCLA, was sufficient to raise a triable issue as to whether Thompson posed a reasonably foreseeable threat.
With respect to the third prong, Rosen submitted declarations of two experts who opined Thompson’s behavior prior to the incident clearly demonstrated he posed a threat to other students. The experts also concluded UCLA did not follow its own policies and procedures in its treatment of Thompson. According to the court, this was sufficient to defeat summary judgment.
Last, the court rejected defendants’ immunity claims based on Government Code section 856 (no liability resulting from decision on whether to confine a person for mental illness; plaintiff’s claims were not based on this statute) and 820.2 (finding discretionary immunity did not apply to university’s execution of its policies and procedures to identify and respond to threats of violence with respect to Thompson).
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