RESOURCES AND POSTINGS FOR MEMBERS OF ATLA'S LITIGATION GROUP: SCHOOLS: VIOLENCE, MISCONDUCT AND SAFETY:
Varner et al. v. District of Columbia et al., 891 A.2d 260 (2006).
Facts: Varner is a wrongful death action arising from the murder of Benjamin Varner, then a student at Gallaudet University, a school in Washington, D.C. for students who are deaf or heard of hearing. Benjamin was murdered by a fellow student, Joseph Mesa. Some four months before Benjamin was killed, another student had been found murdered. At the time of Benjamin’s death, no person had been charged with the prior crime; Mesa was ultimately convicted of both murders.
For several years before these tragic deaths, Mesa had been disciplined repeatedly by Gallaudet for various acts of misconduct. In 1999, he was suspended for one year for theft. According to the University student handbook, theft, and certain other acts of misconduct for which Mesa had been disciplined, “because of the immediate or eventual jeopardy they pose to human life and/or University property, will more than likely result in automatic and immediate dismissal.”
Benjamin’s parents sued Gallaudet, alleging that the University was negligent in (a) failing to expel Mesa, (b) failing to implement adequate safety procedures after the first murder, and (c) failing to provide relevant information to the police regarding Mesa’s past misconduct.
Disposition: The trial court granted Gallaudet’s motion for summary judgment, finding that (a) expert testimony was required as to all claims of negligence alleged, and (b) the plaintiffs had failed to adduce expert testimony establishing standard of care and/or breach. The Court of Appeals affirmed.
(a) Failure to expel Mesa
Plaintiffs argued that the trial court erred in finding that expert testimony was required to establish the applicable standard of care. It was not “beyond the ken” of the average lay person, they argued, to determine what would be reasonable in light of Mesa’s repeated acts of misconduct. Plaintiffs also relied on the student handbook, arguing that this was evidence of what Gallaudet should have, but did not do in response to Mesa’s misconduct.
The Court of Appeals appeared to find this a close question. Thus, “[a]t first blush, there is arguably some common sense appeal to the Varners’ suggestion that the average juror does not require advice from experts in academe in order to be able to identify repeated major thefts as misconduct warranting expulsion, or, at least, exclusion from on-campus dormitories.” But, relying largely on a line of cases finding that expert testimony is required in cases involving safety, security, and crime prevention, and on the applicable standard of review, which accords substantial deference to the trial court on this issue, the Court affirmed the lower court’s ruling.
Plaintiffs argued, in the alternative, that they had adduced sufficient expert testimony on the standard of care. Dr. Timothy F. Brooks, Dean of Student Affairs at the University of Delaware (now retired), testified on behalf of the plaintiffs on this allegation of negligence. However, in his deposition, he was unable to identify any “standard” on which he based his opinion that Gallaudet was negligent in failing to expel Mesa. Instead, he relied on his own experience and, in part, on the student handbook. The Court of Appeals stated: “We have repeatedly held that such testimony is insufficient.” An expert must “’clearly articulate and reference a standard of care by which the defendant’s actions can be measured.’” (citations omitted). In regard to the handbook, the Court stated that violations of procedures prescribed by an agency’s internal manual, while “arguably admissible as evidence of the standard of care,” are not sufficient to establish a national standard of care.
The Court’s holding in regard to the insufficiency of Plaintiffs’ evidence of standard of care disposed of this issue on appeal. Nonetheless, the Court added the following admonition: “Finally, the disciplining of students by universities is an area in which we are obliged to tread carefully and exercise restraint. ‘Courts must enter the realm of school discipline with caution and allow schools flexibility in establishing and enforcing disciplinary procedures.” (citations omitted)
(b) Inadequacy of security procedures/Failure to provide information to police
Plaintiffs had adduced the testimony of two expert witnesses on security, Ira Somerson and Norman Bates, who opined that the University should have altered the programming of students’ key cards to permit students to enter only their own dormitories, and should have provided information regarding Mesa’s past misconduct to the police. However, Mr. Somerson stated in his deposition that there was “no such animal” as a standard applicable to a university with regard to the security it provides students. Mr. Bates opined that a “recommended practice” in a manual published by the International Association of Campus Law Enforcement Administrators established a national standard that Gallaudet had violated. But the Court would not accept an “opinion” directly contrary to the words of the manual, which stated that its recommendations were “aspirational goals” and not standards, at least absent any other basis for that opinion. Thus, the Court of Appeals affirmed the trial court’s ruling that this evidence was insufficient.
Major Practice Points
- In school safety cases, presume an expert is required
- When the failure to discipline is alleged to be the negligent act or omission, or the cause of harm, presume a very strong showing is required
- Work with your experts to find surveys, manuals, reports to establish standard of care
- Student handbooks/codes of conduct may evidence, but do not necessarily establish the applicable standard of care. This may be different in the context of state universities where the student code of conduct may be treated as an administrative regulation
- Distinguish “aspirational” goals set forth in manuals and handbooks from standard of care.
The Varners also sued the District of Columbia, alleging that city detectives failed properly to investigate the first murder. The trial court granted the District’s motion for summary judgment, relying on the “public duty doctrine,” pursuant to which the city owes no duty of care to a particular person in regard to the provision of public services absent a “special relationship” with that person. The court of appeals affirmed.
In the District of Columbia, as in the majority of jurisdictions, an expert must establish a national, rather than a local, standard of care.
OTHER RESOURCES:
C.H.U.C.K.
(Committee to Halt Useless College Killings)
c/o Eileen Stevens (516) 567 1130, P.O. Box 188, Sayville,
New York 11782 You may wish to review Ms. Stevens' web site
for more information about her unsurpassed efforts in this
area.
