A university's duty of care in tortious litigation

¶ … university's duty of care in Tortious Litigation

Duty of Care in Tortious Litigation

According to the Department Justice of Bureau Statistics report in Legal Series Bulletin #2, 2002: "In 1996 10 out of every 1,000 students age 12 through 18, or a total of 255,000 children were victims of serious violent crimes at school or as they traveled to and from it. U.S. schools reported 4,000 rapes or other sexual offense during the 1996-97 school year. 11,000 physical attacks and fights involving the use of weapons and robberies totaling 7,000. (Heaviside, Rowand, Williams, et al. 1998) Congressional legislation established National Education Goals in 1994 for public school throughout the U.S. The establishment of collecting of information for the purpose of producing statistical information is required of all public schools that are recipients of federal funding. Duty of care is a large order for universities in today's environment complete with terrorism, hate and rage. While it is true that all the violence is a problem, there still exist the simple tort law violations and the resulting suits filed in court in relation to injury received on school grounds and university campuses.

Duty of Care in Tortious Litigation

Objective

The purpose of this work in writing is to research and examine a University's "duty of care" in Tortious Litigation and will include information about students' personal accountability as well.

Introduction

Duty of Care refers to the responsibility of the college to ensure the safety and well being of the student physically, mentally and emotionally while on the campus of the university either in class, at work, at play and in the student's dorm room. The student has certain responsibilities concerning their own behavior and adherence to rules as well. During the late 1600's American colleges began the practice of applying rules toward the ends of governing students. At that time security was the task of college presidents, faculty, and janitors. By the mid-1800s some colleges attempted to involve students in discipline and security on campus. Finally in the year of 1894 the first campus-policing program was established as a crime deterrent and as a security feature for the protection of students on Yale University's campus.

The event that compelled college universities to maintain security on campuses was the Kent State University event on April 20, 1970, when students gathered for a protest resulted in the ROTC building being burned to the ground. The fire department arrived and the students took the fire hoses forcefully from the firemen. By noon the National Guard ordered the students to break up the gathering and the students responded by throwing objects at the guard. A guardsman, believing he had heard sniper fire began shooting his M1.30-06 into the group and other guardsmen began firing as well. The country was thrown into a hot outrage over the student's deaths. In the year of 1990 and effective on September 1, 1991, came into effect under the "Crime Awareness and Campus Security Act" under the General Education Provision Act [20 USC 1092b. This Act requires that post-secondary colleges and universities to preparation annual reports on security policies for the campus and to publish and distribute the reports as well however, only schools receiving federal funding are under this requirement. The reports are to include the procedures for crime reporting as well as emergencies in connection to events on campus and the living quarters of students.

I. Background of Violence and Crimes on University and School Campuses

According to the Department Justice of Bureau Statistics report in Legal Series Bulletin #2, 2002: "In 1996 10 out of every 1,000 students age 12 through 18, or a total of 255,000 children were victims of serious violent crimes at school or as they traveled to and from it. U.S. schools reported 4,000 rapes or other sexual offense during the 1996-97 school year. 11,000 physical attacks and fights involving the use of weapons and robberies totaling 7,000. (Heaviside, Rowand, Williams, et al. 1998) Congressional legislation established National Education Goals in 1994 for public school throughout the U.S. The establishment of collecting of information for the purpose of producing statistical information is required of all public schools that are recipients of federal funding. It is stated in the "Annual Report on School Safety: 1998 from the U.S. Department of Justice and Education that "about half of the states collect some type of school crime statistics." In some states such as Florida, the school enters into a formal agreement with the Sheriff to report felonies and violent misdemeanors to law enforcement. Fla Stat. 230.235 (2000).

According to the "Annual Report on School Safety, 1998, the three states of Florida, Delaware and South Carolina have maintained superior quality in their collection and reporting of statistical data in relation to school crime. The following factors in the three states systems are as follows:

comprehensive list of incidents;

Clear definitions of incidents;

Data used by multiple levels of the education system (state, district, and school)

Accurate tracking of data (creation of a standardized approach to reporting school crimes as well as establishing a system for monitoring of the report process); and Training for staff on entry of data and use of data.

II. Youth Violence: Implications for Schools - Universities

According to the Surgeon General:

Youth violence is a high-visibility, high-priority concern in every sector of U.s. society. No community, whether affluent or poor, urban or suburban, or rural, is immune from its devastating effects." (Surgeon General Executive Summary, 1999)

The surgeon General stated that from 1983 to 1993 there was practically an "epidemic" of violence, with behavior that was often lethal in nature in this country that forced young people in the millions as well as their families to deal with injury, disability, and even death. (Cook & Laub, 1998) Findings in the study conducted by the Surgeon General are as follows:

The decade from 1983 to 1993 was marked by an epidemic of increasingly lethal violence associated with a rise in firearms use involving primarily African-American males.

Since 1944, a decline in homicide arrests has reflected primarily the decline in use of firearms.

By 1999, arrest rates for violent crimes with the exception of aggravated assault had fallen below 1983 levels. Arrest rates for aggravated assault remain almost 70% higher than they were in 1983, and this is the offense most frequently captured in self-reports of violence.

Despite the present decline in gun use and in lethal violence, the self-reported proportion of young people involved in nonfatal violence has not dropped from the peak of the epidemic.

The proportion of schools in which gangs are present continued to increase after 1994 and has only recently (1999) declined.

Although arrest statistics cannot readily track firearm use in specific serious crimes other than homicide, firearm use in violent crimes declined among persons of all ages between 1993 and 1997.

The rise and fall in arrest rates over the past two decades has been matched by similar less dramatic changes in some other indicators of violence.

Young men, particularly those from minority groups are disproportionately arrested for violent crimes. Self-reports indicate that differences between minority and majority populations and between young men and young women may not be as disproportionate as is held.

Schools nationwide are relatively safe. Compared to homes and communities schools have fewer homicides and nonfatal injuries. (Report of the Surgeon General, 1999).

III. Review of Statistical Data

The following chart labeled Chart 2.0 illustrates the percentage of students in grades 9-12 who reported carrying a weapon on one or more of the past 30 days 1993-1997. The U.S. total for this period was 23% affirmative in 1993, 20% affirmative in 1995, and 18% affirmative in 1997 as to having carried a gun to school on at least one occasion in the past thirty days preceding the survey.

Chart 1.0

Percentage of students in grades 9-12 who reported carrying a weapon on one or more of the past 30 days 1993-1997]

State 1993 1995 1997

Alabama 27% 27% 26%

Maine 15% 15% 14%

Massachusetts 26% 23% 22%

Nevada 24% 22% 23%

South Carolina 28% 27% 25%

South Dakota 21% 22% 20%

Utah 22% 20% 21%

Of students surveyed that had reported being threatened or injured with a weapon on school property one or more times in the past 12 months prior to the survey revealed a U.S. total as shown in the following chart labeled Chart 2.0.

Chart 2.0

U.S. Total

The U.S. Department of Justice has undertaken a redesign of the Uniform Crime Reporting (UCR) Program, which is called the National Incident-Based Reporting System (NIBRS). This system collects data on incidents of criminal offenses reported to police and arrest and categorizes the information into 22 categories of crime including information about the victims, the victim's gender, types of incidents, and other information concerning the location of occurrence 2,100 jurisdictions have implemented NIBRS in the 13 states of Colorado, Idaho, Massachusetts, Michigan, Nebraska, North Dakota, South Carolina, Tennessee, Texas, Vermont, Virginia and Wisconsin. (Annual Report on School Safety -- October 1998)

IV. Student's Responsibilities in School Safety

Simple everyday actions are effective in reduction of school crime. (Annual Report on School Safety, 1998) Those actions are:

Behave Responsibly:

Students can resolve problems and disputes in a non-violent fashion

Students can refrain from teasing, name calling, and other seemingly innocent behaviors that actually hurt others' feelings.

Respect other students, school staff, and family members.

Know and follow the schools rules.

Report Crimes and threats to school officials.

Get involved in or start anticrime programs at school.

Learn how to avoid becoming a victim.

Seek help.

V. School-Teacher-Staff-Management Responsibilities in School Safety

The school's responsibilities in providing safety at school and on school grounds are as follows:

Provide strong administrative support for assessing and enhancing school safety.

Assessment of the school's security needs.

Monitoring the school facility to ensure it is a clean, safe, environment.

Implementing policies that support and reward prosocial behavior.

Implementing schoolwide education and training on safety and avoiding violence.

Providing counseling and social services to students.

Redesign the school facility to eliminate dark, secluded, and unsupervised spaces.

Devise a system for reporting and analyzing violent and noncriminal incidents.

Design an effective discipline policy.

Build a partnership with local law enforcement.

Enlist school security professionals in designing and maintaining the school security system.

Conducting security assessments

Providing staff development programs

Developing crisis preparedness guidelines.

Identifying security equipment needs (such as metal detectors and surveillance cameras)

Designing enforcement and investigation techniques.

Enhancing links with community officials

Providing safe activities for students.

Train School Staff in all aspects of Violence Prevention

Provide all students' access to school psychologists or counselors.

Provide crisis response services.

A crisis response team with clearly delineated duties.

A plan for evacuating the school plan for coordinating with and notifying police, elected officials, government agencies, and other proper authorities.

A plan for notifying parents quickly.

A media/communications strategy.

Counselors available to deal with students in the aftermath of a traumatic event.

Implement schoolwide education and training on avoiding and preventing. Violence.

Use alternate school settings for educating violent and weapon-carrying students.

Create a climate of tolerance.

Provide appropriate educational services to all students.

Reach out to communities and businesses to improve the safety of students.

Actively involve students in making decisions about school policies and programs.

Prepare an annual report on school crime and safety. (Annual Report on School Safety 1998)

VI. Miscellaneous

Patents in Research

Another problem of security which arose in the year 2001 was one in which the student researcher alleging that while he was working on a potential vaccine for the Herpes virus and the student Dr. Joany Chou, researcher in molecular genetics at University of Chicago who worked under Dr. Roizman has stated that she believed the vaccine should be patented but Dr. Roizman responded that it wasn't patentable. Over the next five years the two worked together in successful research publishing documents and securing a joint patent on one specific aspect of the herpes research. In June 1996, Dr. Roizman gave Dr. Chou the opportunity to resign in lieu of being fired. Dr. Chou kept working and finally in December 1996 Dr. Roizman barred her from the lab...permanently. Dr. Chou began investing and the research revealed the Dr. Roizman had secretly filed a patent. Dr. Roizman was stated to be the sole inventor of the patent. She further found that her being barred from the lab made it much difficult to attempt to prove. Dr. Chou sued Dr. Roizman, the University of Chicago, and the company that had licensed the technology alleging:

That she was the rightful inventor and should be added as an inventor to the patent; and State law claims of conversion, breach of fiduciary duty, breach of contract and unjust enrichment.

Dr. Chou's case was denied any relief in the federal district court in Illinois because, according to the trial judge,

Dr. Chou' employment contract required her to assign the invention to the University, she had no ownership interest in the patent, even if she could prove that she was the rightful inventor. Without this ownership interest in the patent, even if she could prove that she was the rightful inventor. Without this ownership interest in the patient Dr. Chou lacked standing to bring a suit challenging the patent's inventorship. Moreover, since Dr. Roizman owed no duty to inform Dr. Chou about the patentability of her research, his actions did not breach any duties which would allow Dr. Chou to state a claim for recovery under state law."

However, the Federal Circuit Court found "the trial completely erroneous and reversed." The Federal Circuit found that Dr. Chou could also state a claim against the University of Chicago." Because the conduct of Dr. Roizman committed "related to the execution of the employment handbook's guidelines for patenting inventions." (Duke Law & Technology Review, 2001) Dr. Roizman's conduct was within the realm or scope of his employment position with the University, therefore the University was liable under tort and agency law and the established principles thereof. The court specifically stated that:

W} hile university faculty are not agents of the university with respect to the selection and conduct of their research projects, they may well be agents with respect to implementing the policies of the university, including ownership of inventions and compensation therefore." [Cloud v. University of Chicago, 2000 WL 222638, *1 (N.D.III. 2000), rev'd 254 F.3d 1347 (Fed.Cir.2001) "Chou II"]

VII. Title IX and Athletes

In the case of Jones v. Williams 431 N.W.2d 419 (Mich.Ct.App. 1988) the Plaintiff, Curtis Jones alleged that the Defendants, the Detroit Board of Education and an Idaho junior college "academically carried" him through school just to retain his eligibility for the basketball team. Jones was not able to read and neither could he write; and he finally, due to extreme ridicule from his peers had a nervous breakdown. The Michigan Court ruled against Jones because the school board was immune from liability and the court had no jurisdiction over the junior college in Idaho.

The provisions in Title IX are that [n]o person in the United States shall, on the basis of sex, be excluded from participation, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal Financial assistance." [Title IX of the Education Amendments of 1972, 20 U.S.C. 1681(a)(1994)] program or activity is by definition, "all of the operations of a college, university, or other postsecondary institution, or a public system of higher education." [Title IX of the Education Amendments of 1972, 20 U.S.C. 1687(2)(a)(1994)]