Daily Development for Tuesday, January 18, 2000

By: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
randolphp@umkc.edu

LANDOWNER LIABILITY; CRIMINAL ATTACKS; FRATERNITY HAZING: University owes a duty to its student/fraternity pledges to protect them from foreseeable fraternity hazing activities occurring on campus, even when such activities are simple "horseplay" and do not themselves amount to criminal conduct.

Knoll v. Board of Regents of University of Nebraska, 601 N.W.2d 757 (Neb. 1999)

During activities described as "pledge sneak," active fraternity members seized a pledge (a minor) in a University dormitory, handcuffed him and took him to the fraternity house (owned by the fraternity) and where they forced him to drink alcohol. When he was inebriated and became ill, they took him to a third floor bathroom and handcuffed him to a toilet. He later recovered enough to break away from the toilet, and attempted to climb down an outside drainpipe, from which he fell and sustained serious injury.

The student sued the University, among others, for negligence in failing to protect him from this behavior. The University in fact had a policy prohibiting "pledge sneaks" unless they were registered in advance with the University, and otherwise purported to regulate the behavior of student organizations on their privately owned property. It had some awareness of various kinds of recent criminal behaviors in fraternities in general and in this fraternity in particular, including some instances of restraining individuals and forcing them to consume alcohol.

The trial court granted summary judgment to the University.

On appeal: Held: Reversed. The Nebraska Supreme Court held that the University had a duty to protect invitees, such as students, on its property from criminal behavior on its property. It ruled that the duty was generated by the forcibility of criminal conduct based the University's knowledge of prior instances of such conduct both on its property and in the vicinity. But it determined that the issue of forcibility here, when the question is one of duty, is always for the court, and ought not to be a jury issue. This holding overruled prior Nebraska cases on the point.

The focus of the court's decision appears to be the abduction itself, which occurred on University property. The subsequent events may be viewed as the foreseeable consequences of such abduction, but the court does not appear to be ruling that the University had a duty to protect students from criminal attacks off campus. (Later in the opinion the court may be viewed as stating that the University may have had a duty to protect persons from fraternity misconduct even in the fraternity houses because it had undertaken affirmatively to regulate such conduct but this is a different issue.)

The University contended that the landowner liability theory does not apply in the instant case because the actions that took place on the University's property were not criminal in nature, but, rather, were simply "horseplay." The court responded that the third party action giving rise to injury may be actionable even if not criminal, and in fact might even be accidental.

The University also argued that it owed no duty because the abducted student had superior knowledge of the danger. The court acknowledged the existence of a "superior knowledge" exception to landowner liability, but concluded that the exception applied only to claims based upon conditions of the land. It stated that:

"The superior knowledge rule' does not apply to the instant case, which involves liability for the intentionally harmful acts of a third party. An invitee may very well know that the intentionally harmful acts of a third party are foreseeable on the landowner's property. That fact does not obviate the invitee's expectation that the landowner will exercise reasonable care in providing protection. If it did, landowners in obviously high crime areas would have no duty to provide protection at all, since an invitee would always be aware of the danger. Awareness of the danger in such cases is irrelevant; it is the landowner that has superior knowledge of, and the ability to provide, protection."

In an interesting coda to this holding, the court made a comment that conceivably could be viewed as establishing a duty to protect students in off campus fraternity houses as well as on campus. The comment itself does not quite go that far, however, as it addresses the question of the existence of a duty in this instance, where the court clearly had on campus conduct to address: "Moreover, there is evidence that UNL exercised control over the [fraternity house] by considering it to be a "student housing unit" subject to the [University's Student Conduct Code]. The Code contained regulations prohibiting certain conduct, including consumption of alcohol; unreasonably dangerous conduct, including but not limited to hazing; and violation of Nebraska laws, which prohibit hazing and the provision of alcoholic liquor to minors. Insofar as we can determine from the record, the regulations set forth in the Code apply with equal force to student housing units which are situated on property owned by the University and those, such as the [fraternity] house, which are not. The prior instances of alcohol abuse and other law violations occurring on the [fraternity] house premises are therefore particularly pertinent to our determination of whether a duty exists in this case."

Comment 1: Most of this case is not particularly groundbreaking, although the facts will be of interest to some. But the clear differentiation of the forcibility standard for determination of duty (an issue of law) and the forcibility standard for determination of proximate cause (normally an issue of fact for the jury) are quite useful and may bring some clarity to other disputes involving similar matters.

Comment 2: The court also concludes that the question of whether the University satisfied its duty in this case is a question for the jury. This, of course, will lead many defendants to settle the case at the time that the duty issue is resolved, and may lead some courts, as arguably has been the case in some recent California decisions, to avoid finding a duty because such a finding has become "outcome determinative."

Comment 3: One thing that the editor finds most interesting here is the focus on the "abduction" in the University dormitory. Although the facts indicate that the plaintiff indeed did try to escape his abductors, the question remains whether the abduction itself came as any great surprise to him. Fraternity hazing, even though nominally prohibited, is quite common on many campuses, and pledges normally are aware that such conduct may occur at the time that they pledge. Although, admittedly, the pledge may not have consented to what occurred at the fraternity house itself, one wonders whether the "abduction" itself, which is all that the court addresses, really was nonconsensual.

Comment 4: What are the consequences of the holding for operators of off campus apartment buildings or other residences where fraternity pledges may dwell? Campus newspapers are full of reports of hazing incidents. What duty of care does the owner of these housing facilities owe to its tenant/pledges to protect them from "abductions" and similar "horseplay" or other hazing activity? Is anyone providing such protection?

Maybe the landowner in such cases can point to the special language the court in Nebraska inserts at the end, emphasizing the University's Code of Conduct. But, in the context of a "foreseeability based" duty, doesn't the issue of the Code have to do with whether the duty is fulfilled, rather than whether it exists in the first instance?

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

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