than a negligence standard, to his actions. (A good-faith standard would absolve the president of liability even if he were found negligent, as long as he had acted in good faith.)
A more recent Massachusetts case, however, refused to characterize the college's activity in question as commercial in nature. Under the Massachusetts law cited above, a charitable organization, even if found liable for negligence, can be required to pay no more than $20,000 in damages if the tort was committed in an activity that is in furtherance of the organization's charitable purposes and is not commercial in character. In Goldberg v. Northeastern University, 805 N.E.2d 517 (Mass. App. Ct. 2004), the parents of a student who died after visiting the university's health center sued the university, arguing that the negligence of its staff caused their daughter's death. A state appellate court ruled that the operation of a student health center was not a commercial activity, and thus was within the charitable purposes of the university, so the statutory cap on damages applied to the lawsuit. The court went on to rule, however, that the university had not been negligent in operating the health center and found for the university.
Despite these attacks on the charitable immunity doctrine in other states, the New Jersey Supreme Court has upheld the doctrine and has applied it to public as well as private colleges. In O'Connell v. State of New Jersey, 795 A.2d 857 (N.J. 2002), the court interpreted the state's Charitable Immunity Act (N.J. Stat. Ann. § 2A:53A-7-11), which applies to any “nonprofit corporation, society or association organized exclusively for religious, charitable or educational purposes.” The plaintiff, injured when he fell down a stairway on campus, had claimed that, as a recipient of public funds, Montclair State University should not be protected under this doctrine from its alleged negligence. The court disagreed, stating that the public university was a nonprofit entity organized exclusively for educational purposes, and the court found no legislative intent to exclude public colleges from the protections of the Charitable Immunity Act. Because the student was a beneficiary of the university's educational purposes, said the court, the plain meaning of the statute gave the university immunity from liability.
An institution's charitable immunity may also protect it from liability if one of its students is injured as a result of a school-sponsored event in another state (Gilbert v. Seton Hall University, 332 F.3d 105 (2d Cir. 2003)). Similarly, a New Jersey appellate court ruled that charitable immunity precluded an award of damages by a jury against the university when the parents of a student who fell out of a residence hall window and died sued the university for negligence (Orzech v. Fairleigh Dickinson University, 985 A.2d 189 (N.J. Super. Ct. App. Div. 2009)). See also Green v. Monmouth University, 178 A.3d 83 (N.J. Super. Ct. App. Div. 2018) (upholding award of summary judgment to defendant university on charitable immunity grounds in slip-and-fall case brought by non-student plaintiff injured at concert held on university property but organized by entities not affiliated with the university).
Charitable immunity may not protect an institution, however, in cases where willful, wanton, or grossly negligent conduct or intentional acts are alleged. In Hardwicke v. American Boychoir School, 902 A.2d 900 (N.J. 2006), the New Jersey Supreme Court rejected the defendant boarding school's claim that the plaintiff's negligence lawsuit, alleging sexual abuse when he was a 12-year-old residential student, was barred by charitable immunity. The court also held that the defendant could be held vicariously liable for acts of its employees if they were found to have engaged in child abuse. However, in a more recent and high-profile case in the higher education setting involving Pennsylvania State University, a federal court held that the university was not vicariously liable for the sexual abuse of a minor committed by former football defensive coordinator Jerry Sandusky, as the abuse fell outside the scope of his employment under Pennsylvania law. See Doe 6 v. Pennsylvania State University, 982 F. Supp. 2d 437 (E.D. Pa. 2013).
The remainder of this section discusses the most frequently occurring subjects of tort litigation faced by colleges. Although negligence claims outnumber other types of tort claims, defamation claims are common, as are claims of educational malpractice (a hybrid of tort and contract claims, discussed below). The complexity and variety of a college's activities are matched by the complexity and variety of the legal claims brought by individuals who claim to have been injured by the actions—or inaction—of a college or its agents.
3.2.2 Negligence.
3.2.2.1 Overview. Higher education institutions are facing a growing array of negligence lawsuits, often related to students or others injured on campus or at off-campus functions. Although most college students have reached the age of majority and, theoretically, are responsible for their own behavior, injured students and their parents are increasingly asserting that the institution has a duty of supervision or a duty based on its “special relationship” with the student that goes beyond the institution's ordinary duty to invitees, tenants, or trespassers. Courts have rejected this “special relationship” argument for most tort claims, but they have imposed on colleges and universities a duty to protect students from foreseeable harm, such as in cases of hazing or the presence of dangerous persons on campus.
When a postsecondary institution is not immune from negligence suits under either sovereign or charitable immunity, liability depends, first, on whether the institution's actions fit the legal definition of the tort with which it is charged; and, second, on whether the institution's actions are covered by one of the recognized defenses that protect against liability for the tort with which it is charged. For the tort of negligence, the legal definition will be met if the institution owed a duty to the injured party, the institution failed to exercise due care to avoid the injury, and that failure was the proximate cause of the injury. Whether a duty exists is a matter of state common law. See Feliccia v. Lackawanna College, 175 A.3d 221 (Pa. 2017) (determining that an issue of fact existed as to whether a Pennsylvania college was required to have qualified medical personnel present at intercollegiate athletic events to satisfy a duty of care to the college's student-athletes). Typical defenses to tort claims include the claim that there was no duty (because the injury was not foreseeable), that the plaintiff's own negligence (called comparative fault) contributed substantially to his or her harm, or that the plaintiff assumed the risk of injury. If present, comparative fault or assumption of the risk can completely bar a plaintiff's recovery, or limit it, depending on the law in the jurisdiction.
Negligence claims against colleges and universities are typically a result of injury to a student or other invitee (an individual who is lawfully on campus or participating in a college or university activity) as a result of allegedly defective buildings or grounds (premises liability); accidents or other events occurring either on or off campus as a result of instructional activities, cocurricular activities, or outreach activities; or alleged educational malpractice. Cases involving claims in each of these areas are discussed below.
Although courts were historically reluctant to hold colleges to the same standard of care applied to business organizations, landlords, and other noneducational organizations, that attitude has changed markedly in the last decade. Whereas courts in the early and mid-twentieth century applied the doctrine of in loco parentis to shield colleges and universities from liability in tort claims brought by students or their parents, that doctrine fell out of favor when the age of majority for students was lowered to 18, making virtually all college students “adults” in the eyes of the law. Following the demise of in loco parentis, a few courts issued influential rulings that characterized colleges and universities as “bystanders” with respect to the activities of “adult” students.
The seminal case involving a college as “bystander” is Bradshaw v. Rawlings, 612 F.2d 135 (3d Cir. 1979), cert. denied, 446 U.S. 909 (1980), in which the court refused to impose liability on a college for injuries suffered by a student. The student, a sophomore at Delaware Valley College in Doylestown, Pennsylvania, was seriously injured in an automobile accident following the annual
