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A recent decision from one of New York's appellate courts highlights the rare instance where the Child Victims Act can really help students who were assaulted on college campus - and why in most cases, while undoubtedly painful for the victims, are destined to fail.
What Allegedly Happened in Brown v. University of Rochester
In this case, the plaintiff claimed that just before Thanksgiving 1984, she —then a 17-year-old freshman—was sexually assaulted on two separate occasions by members of an on-campus fraternity. In the first incident, plaintiff claimed that she became "intoxicated and disoriented" after imbibing two beers, and that her next memory was of a fraternity member being on top of her, raping her. The following day, she was told "[D]on't worry about it. It happens to all freshman girls." Plaintiff alleged that a second incident occurred shortly thereafter, when a second member of the fraternity raped her by her dorm room, but that the University counselor whom she told about the sexual assaults never reported her claims to University officials, campus security or the City of Rochester Police Department.
Why the Trial and Appeals Court Dismissed Most of the Plaintiff's Claims
In affirming the trial court's dismissal of the negligence claims against the University, New York's Appellate Division, Third Department stated as follows:
"The threshold issue is whether the University owed a duty of care to plaintiff under the circumstances presented. For a defendant to be found liable in negligence, a duty must exist, the breach of which is a proximate cause of the plaintiff's injury (see Palsgraf v Long Is. R.R. Co., 248 NY 339, 341-342 [1928]). "The symmetry is clear: absent a duty, there is no breach and, without a breach, there is no liability" (Vogel v West Mountain Corp., 97 AD2d 46, 48 [3d Dept 1983]). "[T]he imposition of duty presents a question of law for the courts" (Eiseman v State of New York, 70 NY2d 175, 189 [1987]).
The University argues that the Court of Appeals' Eiseman decision (70 NY2d at 190) "requires a finding" that it did not owe plaintiff a duty of care under the circumstances alleged in the complaint. The University is correct to the extent that Eiseman affirmatively rejected the doctrine of in loco parentis at the college level and affirmed the premise that "colleges today in general have no legal duty to shield their students from the dangerous activity of other students" (id.). Supreme Court recognized as much and did not find that the University had a duty based on a student-to-student contact dynamic (see Luina v Katharine Gibbs School N.Y., Inc., 37 AD3d 555, 556 [2d Dept 2007]; Ellis v Mildred Elley School, 245 AD2d 994, [*4]995 [3d Dept 1997]; Rothbard v Colgate Univ., 235 AD2d 675, 676 [3d Dept 1997])."
The One Avenue for Potential School Liability that the Court Left Open
In leaving a narrow swath of claims alive, the Appellate Court concluded its opinion as follows:
"In the premises security context, the Court of Appeals has observed that a "plaintiff can recover only if the assailant was an intruder" (Burgos v Aqueduct Realty Corp., 92 NY2d at 550-551). Here, neither [of the individual defendants] were intruders on campus. As students, they were entitled to be present at the on-campus locations where the incidents occurred. Nor is this a situation where the University failed to take preventive security measures, such as installing adequate door-locking mechanisms. That assessment, however, does not end our inquiry.
"We conclude that where, as here, a complaint alleges that a university received credible reports of ongoing and pervasive criminal conduct against students, perpetrated on campus by other students within the university's control, the university had a legal duty to take appropriate responsive action (see Druger v Syracuse Univ., 207 AD3d 1153, 1154 [4th Dept 2022]; compare Pasquaretto v Long Is. Univ., 106 AD3d 794, 795-796 [2d Dept 2013]). As such, Supreme [*5]Court did not err in denying the University's motion to dismiss the complaint" [Emphasis supplied].
On the one hand, there is little doubt that the appellate court got this principle of law correct; as a practical matter, however, there is equally little doubt that meeting that evidentiary standard at trial is terribly daunting - especially in a case whose evidence dates back to 1984.
