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Cocktails on campus: are libations a liability?


A. Will Modern Expectations and Resulting Pressure from Parents Lead to a Return to the Concept of a Duty Based on In Loco Parentis?

In the thirty-five years since Bradshaw, courts have echoed the firm position that the doctrine of in loco parentis no longer applies to the role that universities fulfill vis-a-vis their adult students. This Article argues that the predominant view of the past thirty-five years should remain the same with regard to universities' liability for alcohol-related incidents: The college owes no legal duty to supervise or protect adult students from voluntary intoxication. A return to the in loco parentis rationale--even if parents may wish it--is inconsistent with the true purpose and goals of higher education. (258) Parents today expect more from college administrators and staff in terms of supervision and protection than in recent decades.

The current generation of parents has been described as "helicopter parents" because they hover over their children and are loath to leave them unattended. Even after the child reaches the age of majority, many parents still exhibit an unwillingness to relinquish control. Undergraduate deans at prestigious schools such as the University of Michigan, the University of Chicago, New York University, and the University of Washington reported that as of the past few years, parents have been contacting the schools to find out about their adult children's grades, finances, and housing arrangements. (259) It is not uncommon for parents to investigate the assigned roommates before delivering their children to the freshmen dormitories, and parents who find Facebook postings that leave a bad impression have been known to request that the college reassign the roommates. (260) Parents even get involved in disputes over grades, arguing with a professor that a B+ should have been an A-, for example. (261)

These parents are the same individuals who grew up during the Vietnam War, earned the right to vote at eighteen, and attended college during the 1970s and 1980s. Most came of age during the peak period when university students asserted their rights as adults and rejected the idea that they needed supervision by college officials or any authority figures. It was not until the late 1960s that some colleges experimented with coeducational, open (uncontrolled access to rooms) dormitories. (262) The freedom to come and go from the dormitory rooms of the opposite gender accompanied many other freedoms and privileges of adulthood that students demanded and succeeded in obtaining. Demonstrations against the Vietnam War sparked violence on campuses such as the University of California-Berkeley, Kent State, Cornell University, and Jackson State. (263) The National Guard's shooting of four student protesters at Kent State in 1970 became a tragic, galvanizing moment in the student movement. (264)

Now, a few decades later, these individuals are unwilling to allow their adult children to enjoy the same independence that they insisted upon as college students. Not only is this situation ironic, but it may have a legal impact on the role that college administrators play. Indeed, it may have some effect on whether courts in the future find that universities have a legal duty to protect and supervise adult students.

It is conceivable, but not ideal, that the law may shift to represent the contemporary standards based on what current "helicopter parents" want the role of the colleges to be. Helicopter parents prefer to be directly involved in their children's lives, but if their involvement is curtailed, they expect the university to assume the role of caretaker. As parents exert pressure on college administrators to increase their supervision over the lives of students, an echo of the old refrain of "in loco parentis" undergirds some of the parental requests. Perhaps there is a cry for a return to the more protective era of the 1950s. Many families expect the university to safeguard their children, and many, if not most, regard their eighteen-year-olds as children, not adults. Nonetheless, one important mission of higher education is that students develop into responsible adults. The court's reasoning in Baldwin is sound:

   The transfer of prerogatives and rights from college administrators
   to the students is salubrious when seen in the context of a proper
   goal of postsecondary education the maturation of the students.
   Only by giving them responsibilities can students grow into
   responsible adulthood.... [and] the overall policy of
   stimulating student growth is in the public interest. (265)

The law evolves and responds to changing social and political views. The Bradshaw case provides an example of this reflection on contemporary values when the court stated, "[t]here was a time when college administrators and faculties assumed a role in loco parentis ... But today students vigorously claim the right to define and regulate their own lives." (266)

B. Is a University Negligent When It Fails To Enforce Its Rules?

Parents might think that if a university has rules against serving alcohol at student events, but fails to enforce those rules, courts would find the university negligent. Precedent does not support this view. (267) The legal analysis begins with the threshold question of whether a university owes its adult students a duty to protect and supervise them at all. The answer is almost always no. A handbook provision does not create a duty on the part of the university to supervise students in circumstances involving alcohol, as noted above. (268)

It is a bit jarring to think that a failure to enforce regulations is not negligence. One wonders why a university publishes rules if it has no legal duty to enforce them. One court spoke in terms of the university reserving the right to take action under its rules, but emphasized that the university was not obligated to take affirmative steps to enforce its handbook provisions. (269) This reasoning reflects the pragmatic position that it is simply unrealistic and overly burdensome to require colleges to monitor their students' social lives. (270) Additionally, there is a legally significant difference between nonfeasance and misfeasance. Nonfeasance, or the failure to act, has not typically resulted in liability for negligence in college alcohol cases. (271) Where nonfeasance is alleged, liability will attach only where a special relationship exists between the plaintiff and the defendant. (272)

In addition to violating university policies, underage drinking violates state law. However, courts have stated that the fact that a student violates the law does not mean that the university has a duty to prevent that student's actions. As the Beach court explained, a student's violation of a law does not mean that a college has assumed a custodial relationship for tort purposes. (273) Perhaps a simple analogy to the criminal justice system is apt: A sheriff has the authority to arrest criminal offenders, but the sheriff is not negligent for failing to track down and detain each and every law breaker. Similarly, a university has the authority to punish students who break the rules, but is not obligated to identify and penalize every offender. A student's violation of the law may give rise to punishment, but it does not change the college-student relationship itself. (274) Absent a special relationship, nonfeasance does not lead to liability under a negligence theory. (275)

C. How to Create a Cultural Change on Campus by Educating Students and Reducing Alcohol-Related Harm

Students need to receive more guidance on how to drink responsibly, which is admittedly challenging because their consumption of alcohol is illegal. There is a logical leap that one must make if arguing that engaging in illegal activity can be done in a responsible manner. That said, there are educational programs that have met with success on some college campuses.

A notable example is the social norming marketing campaign launched in 1999 at the University of Virginia. The university's campaign involved dormitory posters, educational programs, email messages, and special interventions aimed at high risk groups such as athletic teams and Greek organizations. (276) Some of the educational programs were presented by professionals, but others were presented by students. (277) The goal of the campaign was to correct misperceptions about alcohol consumption on campus and to reduce the harm related to alcohol abuse. (278) "Social norms theory" refers to the practice of introducing the subjects (students) to a large amount of accurate information about typical, normal behavior. (279) In other words, the marketing campaign was intended to educate students about alcohol use on campus in order to correct the misperception that other students drank more frequently and more excessively than they actually did. (280) The ultimate goal of the project as a whole was to teach students how to handle situations involving alcohol abuse so as to reduce the negative consequences of excessive drinking at the University of Virginia. (281) The campaign coached students on protective behaviors such as not leaving inebriated friends alone, intervening to prevent drinking and driving, asking friends not to drink so fast, having a designated driver, and eating a meal before drinking. (282)

The effort has been fairly successful. Researchers found that the negative consequences of drinking alcohol declined markedly after students were exposed to educational messages about drinking. (283) The researchers compared the negative consequences of drinking as experienced by students during the years of the study; for example, whether a student "performed poorly on test or project." (284) As a result, the odds ratio, calculated with 95% confidence intervals, declined from .97 in 2002 to only .45 in 2006 after the marketing campaign. (285) The data for those who "had been injured or hurt" showed a significant decrease from .95 in 2002 to .34 in 20 06. (286) Additionally, students reported fewer incidents of driving under the influence with the numbers decreasing by .39 by 2006. (287)

This study of the social norming message campaign provides an answer as to how to begin solving the problems of alcohol abuse on college campuses. Although some researchers have claimed that excessive drinking has continued unabated despite educational programs at various universities, the University of Virginia's campaign provides a well-documented glimmer of hope that behaviors can be modified and that the culture surrounding drinking can become healthier. Other universities have applied a similar model. For example, the University of Arizona implemented the Student Health Alcohol Drug Education (SHADE) program. (288) Students who violate the school's alcohol and marijuana policies are referred to a class where they are taught how to calculate their own blood alcohol concentration, how to pace their intake so as to avoid intoxication, and how to recognize when it is time to stop drinking. (289)

Such educational programs provide an excellent way for students to take responsibility for themselves and their peers. Students' willingness to be proactive shows the type of maturation that courts describe when speaking about the importance of allowing students to develop into responsible adults. (290)


Courts face the challenge of how to reconcile competing views of what the university's role in society is and what it should be in light of tragic alcohol related injuries that befall young adult students. In two particularly difficult areas, hazing and sexual assault, there is understandable pressure to hold university officials accountable for the devastating physical injuries and psychological harm that college-aged victims are suffering. The White House has turned its attention to sexual assault on college campuses, and is calling for universities to increase their preventive measures. (291)

To the extent that the law is shaped by contemporary societal values, the significant pressure from the new generation of parents may reform the notion of duty in the university setting. (292) It may be possible that the law will evolve "full circle," having begun in the 1940s and 1950s era of in loco parentis, then progressing through a half century of students treated as independent adults, and then swinging back to the university's protective role. This change could be triggered by the helicopter parents' desire to have university administrators hover over their offspring and shield them from harm. Courts do not currently hold this social view, and the weight of precedent does not support it, but it could come to be. This would be a negative development for students, as maturing individuals, and for society as a whole. To revert to the position that universities are the custodians of their students would, as one court put it, "directly contravene the competing social policy of fostering an educational environment of student autonomy and independence." (293) A return to the doctrine of in loco parentis is ill-advised, no matter how much the current generation of helicopter parents may wish for colleges to take care of their children in their absence. One of the fundamental purposes of higher education is to shape young adults and to allow for the maturation process. (294)

Moreover, a scientific study shows that well-intentioned helicopter parents may be harming their adult children. (295) Specifically, the study shows that parental interference undermines their offspring's ability to solve problems and sends the "message to their children that they are not competent." (296) Helicopter parenting "decreased adult children's feelings of autonomy, competence and connection," concluded the report. (297)

It is important for students to develop their own sense of responsibility, decision-making ability, and awareness of risks and consequences. Not only do students deserve the chance to develop into mature decision-makers for their own sakes, they also need to become productive for the sake of the greater community so they can hold jobs, pay bills, take care of themselves, and participate effectively in civic and social activities. Even if universities were to assume custodial roles by attempting to regulate students' private lives (which would likely be almost impossible), the university would then be undermining its own goal of fostering the students' development and maturation. Universities do not, and should not, have a duty to protect young adults from their own choices, however risky those choices may be.

Some argue that the "scourge of crude binge drinking" coincided with the change of the drinking age to twenty-one, for instead of being permitted to socialize, drink, and flirt in a "controlled public environment," students drink privately in "boorish free-for-all" social settings. (298) Although some statistics refute the assertion that the amount of drinking by students has increased, (299) many university presidents support an initiative to lower the drinking age so that eighteen-year-olds can legally consume alcohol. (300) Requiring students to abstain from drinking leads to clandestine alcohol abuse (and other bad practices such as obtaining fake identification cards) and fosters disrespect for the law. (301) Advocates argue that the drinking age should be changed back to eighteen, claiming that it is "absurd and unjust that young Americans can vote, marry, enter contracts and serve in the military at 18 but cannot buy an alcoholic drink in a bar or restaurant." (302) This Article does not focus on the drinking age itself, but rather supports changing the culture surrounding social drinking. The social norming study conducted by the University of Virginia researchers gives hope that the culture can gradually be changed. (303)

Parents can encourage students to act responsibly, but must resist the urge to hover over them. "College is a time when parents can grant their children the precious opportunity to take responsibility as they develop into independent young men and women, fully prepared to be productive and engaged citizens," two senior university administrators wrote recently. (304) "To the parents of children who don't like their roommates, teachers, academic advisers or grades, we urge empathy and calm. The social and survival skills young people develop in these situations will serve them well later in life." (305)

Parents are encouraged to discuss health risks, including alcohol use, sexually transmitted diseases, and sleep deprivation, with their college-bound children. (306) To broach subjects such as how to handle social settings where excessive drinking occurs, parents can talk about how their student can protect his or her friends if he or she sees them taking risks. (307) Using this approach is an easier way to discuss a difficult topic than preaching to the student about her own behavior. (308) Parents can get involved in a positive way: "[W]e implore our parents, remind your children that, in an environment of almost total freedom, it will now be up to them to make responsible decisions about alcohol and sex." (309) There is a fine line between hovering, which is over-parenting, and fulfilling a strong parental role. The challenge is for parents to provide appropriate guidance, with help from the greater community and some assistance from universities.

College administrators alone cannot successfully shoulder the responsibility for curbing alcohol consumption. Partnerships with local law enforcement, merchants, and community leaders--as well as with student organizations on campus--can reduce alcohol violations. (310) The positive and appropriate influence of parents and family members is also of particular importance. The National Institute on Alcohol Abuse and Alcoholism reports that students whose parents have talked with them about alcohol use are more likely than other students to abstain or to avoid binge drinking. (311)

Imposing the tort liability upon college administrators for harm that results from students' drinking is not the answer to the problem. As one court indicated,

   [t]he imposition of a duty to exercise care ... would hold the
   University liable for a risk it neither created nor exacerbated nor
   can readily abate.... [S]uch a duty cannot be imposed without
   resurrecting the university's role of in loco parentis, which is no
   longer feasible, even accepting the doubtful assumption it would be
   wise. (312)

In the context of tort law, this assertion is accurate, and courts should not impose a legal duty. However, in the broader social context, encouraging universities to engage in social norming message campaigns is a laudable idea and may help reduce alcohol-related injuries. Finding a solution that is based on preventive measures rather than litigation after injuries occur is ideal. Allowing parents to offer guidance is appropriate, but permitting parents to become overly involved in the choices their adult children make is counterproductive.

In general, the university has no heightened, specialized duty to care for adult students, and this "no duty" approach is appropriate. A return to in loco parentis is not a feasible option. One California court described the old days of in loco parentis and noted that the doctrine no longer applies: "courts have not been willing to require college administrators to reinstitute curfews, bed checks, dormitory searches, hall monitors, chaperons [sic], and the other concomitant measures which would be necessary in order to suppress the use of intoxicants and protect students from each other." (313) Another court stated summarily,

   We find unpersuasive the argument that college students--the great
   majority of whom are over eighteen years old--are so immature that
   they should be considered wards of their particular institution of
   higher education while the people of this country have found those
   same students as a whole to be mature enough to exercise the most
   sacred right a democracy can bestow. (314)

In summary, the no duty rule is the right approach, as universities should not be held responsible for monitoring the private lives of their students. Growing into mature adulthood involves taking risks and learning that accidents have consequences, even though the results can be tragically harsh for students and their loved ones.

Susan S. Bendlin, Associate Professor, Barry University School of Law, and former Dean of Students at Emory University School of Law, Duke University School of Law, and Barry University School of Law. The author wishes to thank her research assistants, Mario Raya (J.D. anticipated, 2016) and Christian Tiblier (J.D. anticipated, 2016).

(1.) Beach v. Univ. of Utah, 726 P.2d 413, 419 (Utah 1986).

(2.) College Drinking, NAT'L INST. ON ALCOHOL ABUSE AND ALCOHOLISM 1 (July 2013), http://pubs.niaa, archived at [hereinafter NIAAA Report] (citing Ralph Hingson, et al., Magnitude of and Trends in Alcohol-Related Mortality and Morbidity Among U.S. College Students Ages 18-24, 1998-2005, J. STUD. ON ALCOHOL AND Drugs Supp., 2009, at 16).

(3.) Id. at 1.

(4.) Id. at 1-2; see also White House Council on Women and Girls, Rape and Sexual Assault: A RENEWED Call TO Action, at 10 (Jan. 2014), lt_report_1-21-14.pdf, archived at (identifying one in five college women as sexual assault victims). A report prepared by the White House Council on Women and Girls found that "[t]he dynamics of college life appear to fuel the problem" and that many sexual assaults occur when the victim is "drunk, under the influence of drugs, passed out, or otherwise incapacitated." WHITE HOUSE COUNCIL ON WOMEN and Girls, supra, at 14. While fifty-eight percent of these incapacitated assaults take place at college parties, the White House Task Force to Protect Students from Sexual Assault released a report in April 2014 that did not dwell on college parties or alcohol abuse as the catalyst of these assaults, but focused instead on the larger problem of victims of sexual assault being viewed negatively by the community. See id. (noting fifty-eight percent of incapacitated rapes occurred at college parties); NOT ALONE: THE FIRST REPORT OF THE WHITE House Task Force to Protect Students from Sexual Assault (Apr. 2014), assets/report.pdf, archived at [hereinafter NOT ALONE REPORT].

(5.) See NIAAA Report, supra note 2, at 1-2 (defining binge drinking as five drinks for men or four drinks for women in two-hour period).

(6.) See Leslie Postal, Wild, Boozy Party Brings Suspension of UCF's ATO Frat, ORLANDO SENTINEL, Sept. 5, 2013, at A1 (indicating ATO suspended for hosting unauthorized house party and serving alcohol to underage students).

(7.) See Carrie Wells, Towson Hazing Report: Cheerleaders Drank Alcohol, Wore Adult Diapers, BALT. SUN (June 4, 2014), cheerleaders20140603_1_cheerleading-team-edy-pratt-diapers, archived at (describing hazing incident involving Towson cheerleaders).

(8.) See Michelle Goldberg, Why the Campus Rape Crisis Confounds Colleges, THE NATION (June 5, 2014),, archived at

(9.) See Jenna Johnson, Schools Try New Strategies to Battle College Drinking, WASH. POST MAGAZINE (Aug. 30, 2013), college-drinking/2013/08/29/44919708-e011-11e2-b2d4-ea6d8f477a01_story.html, archived at http://perma.c c/NP9Z-BAHM.

(10.) See Ellen J. Bass et al., Are Students Drinking Hand Over Fifth? Understanding Participant Demographics in Order to Curb a Dangerous Practice, J. ALCOHOL & DRUG EDUC. (Dec. 1, 2011),, archived at (discussing "celebratory drinking" on college campuses).

(11.) See A bout Us, GORDIE CENTER FOR SUBSTANCE ABUSE PREVENTION, http ://gordiecenter.studentheal (last visited Oct. 26, 2014), archived at The non-profit Gordie Foundation was named for Lynn Gordon "Gordie" Bailey Jr., who died of an alcohol overdose at the University of Colorado after a fraternity initiation ceremony on September 17, 2004. Id. In the summer of 2010, the Gordie Foundation merged with the Center for Alcohol and Substance Education at the University of Virginia. Id. The Center honors Gordie's memory by "creating and distributing programs to reduce hazardous drinking and promote peer intervention among young adults." Id.

(12.) See generally The American Freshman Survey Publications, HIGHER EDUCATION RESEARCH INSTITUTE,, archived at [hereinafter Freshman Surveys]. Researchers at the University of California-Los Angeles have conducted a comprehensive survey of college freshman every year since 1966. See id. In most years, freshmen were asked whether they "frequently," "occasionally," or "never" drink beer. See id. In many years, the students were also asked how often they consumed liquor or wine. See id.

(13.) See Alexander W. Astin et al., National Norms for Entering College Freshmen--Fall 1966, 2 AM. COUNCIL ON EDUC. 1, 25 (1967), available at ationalNormsForEnteringCollegeFreshmen1966.pdf, archived at (providing 1966 statistics).

(14.) Freshmen were asked if they drank beer, but were not polled about liquor or wine in the 1970s and 1980s. See Freshman Surveys, supra note 12. In 1990, when surveyed about alcohol consumption, students reported that 58.2% drank beer and 57.5% drank liquor or wine. See Alexander W. Astin et al., American Freshman: National Norms for Fall 1990, COOP. INST. RESEARCH PROGRAM, UCLA, at 45 (Dec. 1990), available at, archived at (providing 1990 freshman statistics).

(15.) See Alexander W. Astin et al., The American Freshman: National Norms for Fall 1978, COOP. INST. RESEARCH Program, UCLA, at 57 (1978), available at nographs/TheAmericanFreshman1978.pdf, archived at (providing 1978 freshman statistics); Alexander W. Astin et al., The American Freshman: National Norms for Fall 1982, AM. COUNCIL ON EDUC., UCLA, at 56 (Dec. 1982), available at Monographs/TheAmericanFreshman1982.pdf, archived at (providing 1982 freshman statistics).

(16.) See Alexander W. Astin et al., The American Freshman: National Norms for Fall 2000, COOP. INST. RESEARCH Program, UCLA, at 16 (Jan. 2001), available at /Monographs/TheAmericanFreshman2000.pdf, archived at (providing freshman statistics for 2000); Kevin Eagan et al., The American Freshman: National Norms Fall 2013, COOP. INST. RESEARCH PROGRAM, UCLA, at 28 (2013), available at reshman2013.pdf, archived at (providing freshman statistics for 2013).

(17.) Telephone Interview with Susan Bruce, Director of the Gordie Center for Substance Abuse Prevention, University of Virginia (July 2, 2014); see also Susie Bruce, Is Everybody Drinking??, GORDIE CTR. FOR SUBSTANCE ABUSE PREVENTION, (last visited Oct. 26, 2014), archived at In a scientific study, researchers concluded that "[s]tudents consistently overestimated the general student population's amount and frequency of alcohol consumption...." James Turner et al., Declining Negative Consequences Related to Alcohol Misuse Among Students Exposed to a Social Norms Marketing Intervention on a College Campus, 57 J. AM. COLLEGE HEALTH 85, 85 (2008), available at, archived at

(18.) See Bruce, supra note 17.

(19.) Johnson, supra note 9.

(20.) See U.S. CONST. amend. XXVI.

(21.) Bradshaw v. Rawlings, 612 F.2d 135, 139 (3d Cir. 1979).

(22.) See id.

(23.) See Beach v. Univ. of Utah, 726 P.2d 413, 418-19 (Utah 1986) (describing court's position and reasoning universities not custodians of adult students).

(24.) Bradshaw, 612 F.2d at 140.

(25.) Id.

(26.) Beach, 726 P.2d at 418.

(27.) Bradshaw v. Rawlings, 612 F.2d 135, 140 (3d Cir. 1979).

(28.) See 23 U.S.C. [section] 158 (2012) (establishing twenty-one as minimum drinking age).

(29.) See id.

(30.) See South Dakota v. Dole, 483 U.S. 203, 211-12 (1987) (holding Act valid exercise of federal spending power). The Supreme Court rejected the argument that the Act violated the twenty-first amendment, which gives states power to impose restrictions on the sale of alcoholic beverages. Id. at 209.

(31.) J.H. Hedlund et al, Determine Why There Are Fewer Young Alcohol-Impaired Drivers, Nat'l HIGHWAY Traffic Safety Admin. (2001), available at werYoungDrivers/index.htm#toc, archived at

(32.) See Johnson, supra note 9 (describing tactics adopted by universities to control college drinking).

(33.) See 20 U.S.C. [section] 1011i (2012) (codifying act for preventative regulations); see also 34 C.F.R. [section]86.1 (2012) (explaining purpose behind preventative regulations); Drug-Free Schools and Campuses, 55 Fed. Reg. 33580-01 (Aug. 16, 1990) (providing final regulations for 1989 Amendments).

(34.) See Clery Act, 20 U.S.C. [section] 1092(f) (2014) (requiring disclosure of campus security policy and crime statistics).

(35.) 20 U.S.C. [section] 1092(f)(1)(H).

(36.) See NIAAA Report, supra note 2, at 3-4 (detailing strategies taken to address college drinking).

(37.) See id.

(38.) See Beach v. Univ. of Utah, 726 P.2d 413, 414 (Utah 1986) (describing student's fall after drinking).

(39.) See Morrison v. Kappa Alpha Psi Fraternity, 738 So. 2d 1105, 1110 (La. Ct. App. 1999) (describing injuries sustained by student during fraternity hazing ritual).

(40.) See Crow v. State, 271 Cal. Rptr. 349, 351 (Cal. Ct. App. 1990) (describing assault on student at California State University).

(41.) Peter F. Lake, Private Law Continues to Come to Campus: Rights and Responsibilities Revisited, 31 J.C. & U.L. 621, 623 (2005) ("Litigation over injuries fueled by alcohol drive college and university safety law today.").

(42.) See Nero v. Kan. State Univ., 861 P.2d 768, 772 (Kan. 1993) (describing requirements for prima facie case under negligence).

(43.) See infra Part II.

(44.) See infra Part III.

(45.) See infra Part IV.

(46.) See Bradshaw v. Rawlings, 612 F.2d 135, 138 (3d Cir. 1979).

   "'[D]uty' is not sacrosanct in itself, but only an expression of
   the sum total of those considerations of policy which lead the law
   to say that a particular plaintiff is entitled to protection."
   Thus, we may perceive duty simply as an obligation to which the law
   will give recognition in order to require one person to conform to
   a particular standard of conduct with respect to another person.

Id. (quoting WILLIAM L. PROSSER, Law OF TORTS 333 (3d ed. 1964)).

(47.) out of twenty-eight cases involving alcohol-related harm, in only six instances did the court conclude that the university likely owed a duty to the student. Compare Zavala v. Regents of Univ. of Cal., 178 Cal. Rptr. 185 (Cal. Ct. App. 1981), Flynn v. Fairfield Univ., No. CV040410558S, 2006 WL 2193246 (Conn. Super. Ct. July 18, 2006), McClure v. Fairfield Univ., No. CV000159028, 2003 WL 21524786 (Conn. Super. Ct. June 19, 2003), Coghlan v. Beta Theta Pi Fraternity, 987 P.2d 300 (Idaho 1999), Orzech v. Fairleigh Dickinson Univ., 985 A.2d 189 (N.J. Super. Ct. App. Div. 2009), and Wiener v. Gamma Phi Chapter of Alpha Tau Omega Fraternity, 485 P.2d 18 (Or. 1971), with Guest v. Hansen, 603 F.3d 15 (2d Cir. 2010), Bradshaw v. Rawlings, 612 F.2d 135 (3d. Cir. 1979), Miller v. Concordia Teachers Coll., 296 F.2d 100 (8th Cir. 1961), Anderson v. Principia Corp., 202 F. Supp. 2d 950 (E.D. Mo. 2001), Albano v. Colby Coll., 822 F. Supp. 840 (D. Me. 1993), Booker v. Lehigh Univ., 800 F. Supp. 234 (E.D. Pa. 1992), Tanja H. v. Regents of Univ. of Cal., 278 Cal. Rptr. 918 (Cal. Ct. App. 1991), Crow v. State, 271 Cal. Rptr. 349 (Cal. Ct. App. 1990), Baldwin v. Zoradi, 176 Cal. Rptr. 809 (Cal. Ct. App. 1981), Univ. of Denver v. Whitlock, 744 P.2d 54 (Colo. 1987), Pawlowski v. Delta Sigma Phi, No. CV-03-0484661S, 2009 WL 415667 (Conn. Super. Ct. Jan. 23, 2009), Rigdon v. Kappa Alpha Fraternity, 568 S.E.2d 790 (Ga. Ct. App. 2002), Rabel v. 1ll. Wesleyan Univ., 514 N.E.2d 552 (1ll. App. Ct. 1987), Campbell v. Bd. of Trustees of Wabash Coll., 495 N.E.2d 227 (Ind. Ct. App. 1986), Bearman v. Univ. of Notre Dame, 453 N.E.2d 1196 (Ind. Ct. App. 1983), Allen v. Rutgers, 523 A.2d 262 (N.J. Super. Ct. App. Div. 1987), Peterson v. Fordham Univ., 761 N.Y.S.2d 33 (N.Y. App. Div. 2003), Rothbard v. Colgate Univ., 652 N.Y.S.2d 146 (N.Y. App. Div. 1997), Mynhardt v. Elon Univ., 725 S.E.2d 632 (N.C. Ct. App. 2012), Van Mastrigt v. Delta Tau Delta, 573 A.2d 1128 (Pa. Super. Ct. 1990), Beach v. Univ. of Utah, 726 P.2d 413 (Utah 1986), and Houck v. Univ. of Wash., 803 P.2d 47 (Wash. Ct. App. 1991). In two of those cases, the courts stated that the university might be found to owe a duty because the university had undertaken or assumed the duty. See Coghlan, 987 P.2d at 312; McClure, 2003 WL 21524786, at *8. Of the six cases where the court concluded that the school likely owed a duty, only one ultimately resulted in the university being held potentially liable for ordinary negligence. See Flynn, 2006 WL 2193246, at *4 (denying defendant's motion for summary judgment, finding university's conduct possibly substantial factor in accident). In another case the university was found partially at fault. See Zavala, 178 Cal. Rptr. at 187 (finding university 20% liable for plaintiff's injuries). Finally, in McClure, the court found the University breached its assumed duty. See McClure, 2003 WL 21524786, at *8 (establishing university owed duty to plaintiff).

(48.) William P. Hoye, What a Difference a Millennium Makes: Tort Litigation in Higher Education, Circa Y2K, 147 Ed. L. Rep. 767, 769 (2000).

(49.) Crow, 271 Cal. Rptr. at 359-60.

(50.) Bash v. Clark Univ., No. 06745A, 2006 WL 4114297, at *5 (Mass. Super. Ct. Nov. 20, 2006).

(51.) See Freeman v. Busch, 349 F.3d 582, 587 (8th Cir. 2003). "[T]he general rule is that no special relationship exists between a college and its own students because a college is not an insurer of the safety of its students." Id.

(52.) Beach, 726 P.2d at 415 (citing RESTATEMENT (SECOND) OF Torts [section] 314 (A)(1964)).

(53.) Beach v. Univ. of Utah, 726 P.2d 413, 415-16 (Utah 1986) (citing RESTATEMENT (SECOND) OF TORTS [section] 314(A) cmt. b (1964)); see also Univ. of Denver v. Whitlock, 744 P.2d 54, 58 (Colo. 1987) ("Special relationships ... include common carrier/passenger, innkeeper/guest, possessor of land/invited entrant, employer/employee, parent/child, and hospital/patient.").

(54.) See 612 F.2d 135, 143 (3d Cir. 1979) (finding plaintiff failed to establish university owed him duty of custodial care).

(55.) See id. at 137 (describing facts of case).

(56.) See id. at 143.

(57.) Id. at 138.

(58.) Bradshaw, 612 F.2d at 138.

(59.) Id. at 139-40.

(60.) 726 P.2d 413, 417-18 (Utah 1986).

(61.) See id. at 417-18. The court further explained:

   Determining whether one party has an affirmative duty to protect
   another from the other's own acts or those of a third party
   requires a careful consideration of the consequences for the
   parties and society at large. If the duty is realistically
   incapable of performance, or if it is fundamentally at odds with
   the nature of the parties' relationship, we should be loath to term
   that relationship "special" and to impose a resulting "duty[.]"

Id. at 418.

(62.) See id. at 415.

(63.) See id.

(64.) Beach, 726 P.2d at 415.

(65.) See id. at 417-18. One court criticized the logic in both Beach and Bradshaw, saying that although those courts declined to impose a duty on the university to supervise students who were "responsible adults," the offenses involved drinking alcoholic beverages, which is an area where "the students were unquestionably not deemed adults under the law since most, if not all, participants were below the drinking age." Furek v. Univ. of Del., 594 A.2d 506, 518 (Del. 1991). Since the students are not old enough to drink legally, it is illogical to say that they are "mature" with regard to making the choice and handling the effects of consuming alcohol, the court opined. See id. A California court made a similar observation: "College students are generally young adults who do not always have a mature understanding of their own limitations or the dangers posed by alcohol and violence." Tanja H. v. Regents of Univ. of Cal., 278 Cal. Rptr. 918, 920 (Cal. Ct. App. 1991). That point is well taken, but the fact remains that adult students need to learn to make their own decisions and to handle their own problems.

(66.) Univ. of Denver v. Whitlock, 744 P.2d 54, 62 (Colo. 1987).

(67.) Id. at 60 (citations omitted). Furthermore, "[s]uch an allocation of responsibility would 'produce a repressive and inhospitable environment, largely inconsistent with the objectives of a modern college education.'" Id. (quoting Beach v. Univ. of Utah, 726 P.2d 413, 419 (Utah 1986)).

(68.) Whitlock, 744 P.2d at 62.

(69.) Nero v. Kan. State Univ., 861 P.2d 768, 778 (Kan. 1993).

(70.) See id. at 771.

(71.) See id. at 773.

(72.) Id.

(73.) Coghlan v. Beta Theta Pi Fraternity, 987 P.2d 300, 304-305 (Idaho 1999).

(74.) Id. at 393.

(75.) See id.

(76.) See id. at 312 (declining to hold university has duty to aid or protect adult students).

(77.) Coghlan, 987 P.2d at 313.

(78.) Bash v. Clark Univ., No. 200600745, 2007 WL 1418528, at *2 (Mass. Super. Ct. Apr. 5, 2007).

(79.) See id. at *1.

(80.) See id. at *2 (finding Clark University did not owe duty to adult student).

(81.) Mynhardt v. Elon Univ., 725 S.E.2d 632, 637 (N.C. Ct. App. 2012) (finding university owed no duty to paralyzed student who had been pushed over at party).

(82.) Id.

(83.) See Baldwin v. Zoradi, 176 Cal. Rptr. 809, 813-14 (Cal. Ct. App. 1981).

(84.) Eiseman v. State, 511 N.E.2d 1128, 1134 (N.Y. 1987); see also Guest v. Hansen, 603 F.3d 15, 22 (2d Cir. 2010) (quoting language from Eiseman case). While it is well established that there is no duty to protect against unforeseeable harm, some may argue that injuries from alcohol consumption are foreseeable.

(85.) See Beach v. Univ. of Utah, 726 P.2d 413, 419 (Utah 1986) (asserting placing role of custodian over adult students on universities unrealistic).

(86.) See supra Part II.A.1. For example, in Baldwin, the court had stated, "[s]tudents have demanded rights which have given them a new status and abrogated the role of in loco parentis of college administrators." Baldwin v. Zoradi, 176 Cal. Rptr. 809, 816 (Cal. Ct. App. 1981).

(87.) Guest, 603 F.3d at 21-22 (emphasis added).

(88.) See Bradshaw v. Rawlings, 612 F.2d 135, 141 (3d Cir. 1979) (describing plaintiff's argument).

(89.) See id. at 142-43 (stating court's reasoning).

(90.) See id. at 142.

(91.) See id.

(92.) 551 P.2d 334 (Cal. 1976).

(93.) See id. at 353.

(94.) See id. at 344 (describing special relationship and duty arising from it).

(95.) 176 Cal. Rptr. 809, 811 (Cal. Ct. App. 1981).

(96.) See id. at 814.

(97.) See id. at 816.

(98.) Id. at 282 (emphasis added) (citing Tarasoff v. Regents of Univ. of Cal., 551 P.2d 334, 342-43 (Cal. 1976)).

(99.) See Baldwin, 176 Cal. Rptr. at 819; Beach v. Univ. of Utah, 726 P.2d 413, 419 (Utah 1986).

(100.) In the Beach case, the court held that there was no special relationship between the university and the plaintiff Beach or other adult students. See Beach, 726 P.2d at 419. "Our conclusion is not affected by the presence of any university rules that might have existed regarding the consumption of alcohol, over and above the state ban on underage drinking." Id. The court further held that neither the student's attendance nor agreement to behavioral policies made "the student less an autonomous adult or the [university] more a caretaker." Id. at 419 n.5.

(101.) See Coghlan v. Beta Theta Pi Fraternity, 987 P.2d 300, 312 (Idaho 1999) (rejecting argument university owed students duty because officials knew or should have known about party); see also Beach, 726 P.2d at 415, 419 (asserting university did not owe duty of care to students despite supervision by university officials on trip).

(102.) 603 F.3d 15, 22 (2d Cir. 2010).

(103.) See id. at 17-19 (describing factual background leading to case).

(104.) See id. at 19.

(105.) Id. at 22.

(106.) See Guest, 603 F.3d at 22 ("The same conclusion obtains even if the drinking at issue began on the College's premises....").

(107.) See 987 P.2d 300, 305, 312 (Idaho 1999).

(108.) See id. at 312 (explaining court's response to plaintiff's arguments regarding university's duties).

(109.) See id. at 305.

(110.) See id. at 312. The court "decline[d] to hold that Idaho universities have the kind of special relationship creating a duty to

aid or protect adult students from the risks associated with the students' own voluntary intoxication." Id. at 312. The court also noted what other courts have stated, that a university is not an insurer of its students. Id. Therefore, there was no duty imposed on the school because no special relationship existed between the plaintiff and the university. Id.

(111.) See Davidson v. Univ. of N.C., 543 S.E.2d 920 (N.C. Ct. App. 2001).

(112.) See id. at 927 (describing duty of university towards students).

(113.) Id. at 928. Sports injuries and hazing cases are occasionally the exceptions to the general rule that a university has no duty to supervise or protect its students. See Hoye, supra note 48, at 775 (describing sports and hazing issues as exceptions).

(114.) See 594 A.2d 506, 510 (Del. 1991) (describing injury leading to case).

(115.) See id. at 520 (explaining reasoning behind following specific Restatement section).

(116.) Id. at 517.

(117.) Id. at 520.

(118.) Furek, 594 A.2d at 520. The court in Furek stated a university's responsibility is based on Restatement [section] 323's provision regarding a "duty owed by one who assumes direct responsibility for the safety of another." Id.

(119.) See Guest v. Hansen, 603 F.3d 15, 22 (2d Cir. 2010); cf. Lloyd v. Alpha Phi Alpha Fraternity, No. 96-CV-348, 1999 WL 47153, at *4 (N.D.N.Y. Jan. 26, 1999) (alteration in original) (quoting Oja v. Grand Chapter of Theta Chi Fraternity, 255 680 N.Y.S.2d 277, 278 (N.Y. App. Div. 1998)) ("[A] landowner cannot be held liable for injuries sustained by a party engaged in a voluntary activity unless the landowner had knowledge of the activities and exercised a degree of supervision or control.").

(120.) Guest, 603 F.3d at 22.

(121.) Rhaney v. Univ. of Md. E. Shore, 880 A.2d 357, 365 (Md. 2005). The Rhaney case apparently did not involve alcohol-related injuries; rather, a student was assaulted in the dormitory by a roommate with a history of violent tendencies. See id. at 359.

(122.) Id. at 365 (discussing defective and dangerous conditions).

(123.) See id. at 365-66.

(124.) Baldwin v. Zoradi, 176 Cal. Rptr. 809, 820 (Cal. Ct. App. 1981).

(125.) Id. at 292-93.

(126.) See id. at 293-94 (identifying prior cases, distinguishing present facts from those).

(127.) See id. at 294 (asserting no cause of action for negligent creation of dangerous condition stated).

(128.) See 271 Cal. Rptr. 349, 355-56 (Cal. Ct. App. 1990).

(129.) See id. at 351 (describing background facts of case).

(130.) See id. at 357-58 (explaining reasoning behind rejection of plaintiff's argument).

(131.) Tanja H. v. Regents of Univ. of Cal., 278 Cal. Rptr. 918, 920-21 (Cal. Ct. App. 1991) (utilizing innkeeper approach to analyze existence of duty on part of university).

(132.) See id. at 919 (describing facts of case).

(133.) See id. at 921 (stating shattered light bulb in stairwell did not trigger liability for sexual assault in dark stairwell). The court found the attack was not causally connected to darkness, and that the assault "began in one dormitory room, continued on the landing, and continued in two other rooms." Id.

(134.) Id. at 921.

(135.) Tanja H, 278 Cal. Rptr. at 920 (quoting Crow v. State, 271 Cal. Rptr. 349, 359 (Cal. Ct. App. 1990)).

(136.) Id. at 925.

(137.) Tanja H. v. Regents of Univ. of Cal., 278 Cal. Rptr. 918, 921 (Cal. Ct. App. 1991).

(138.) See Univ. of Denver v. Whitlock, 744 P.2d 54, 61-62 (Colo. 1987) (explaining relationship between parties).

(139.) See id. at 61-62.

(140.) Id. at 62.

(141.) See Furek v. Univ. of Del., 594 A.2d 506 (Del. 1991); Lake, supra note 41, at 626.

(142.) See Furek, 594 A.2d at 520.

(143.) See id. at 522.

(144.) Id.

(145.) See 20 U.S.C. [section] 1011i (2012) (codifying act for preventative regulations); see also 34 C.F.R. [section] 86.1 (explaining purpose behind preventative regulations); 55 Fed. Reg. 33580-01 (Aug. 16, 1980) (providing final regulations for 1989 Amendments).

(146.) See Booker v. Lehigh Univ., 800 F. Supp. 234, 238-40 (E.D. Pa. 1992) (holding university's "Social Policy" did not give rise to duty to students).

(147.) See Rabel v. Ill. Wesleyan Univ., 514 N.E.2d 552, 558 (Ill. App. Ct. 1987) (describing plaintiff's position that university's policies constituted duty to students); Rothbard v. Colgate Univ., 652 N.Y.S.2d 146, 148 (N.Y. App. Div. 1997) (explaining plaintiff's claim university handbook created duty to control or supervise student conduct).

(148.) See Beach v. Univ. of Utah, 726 P.2d 413, 420 (Utah 1986) (stating university's code of conduct permits disciplining students, but does not change student/university relationship).

(149.) See Bradshaw v. Rawlings, 612 F.2d 135, 141 (3d Cir. 1979) (describing court's belief policy does not lead to duty).

(150.) See id.

(151.) 800 F. Supp. 234, 236-37 (E.D. Pa. 1992).

(152.) Id.

(153.) Id. at 237.

(154.) Id. at 241.

(155.) Booker, 800 F. Supp. at 241.

(156.) Id. at 235.

(157.) Millard v. Osborne, 611 A.2d 715, 721 (Pa. Super. Ct. 1992).

(158.) See id. at 717; accord Univ. of Denver v. Whitlock, 744 P.2d 54, 60 (Colo. 1987) ("Nothing in the University's student handbook, which contains certain regulations concerning student conduct, reflects an effort by the University to control the risk-taking decisions of its students in their private recreation.").

(159.) Rothbard v. Colgate Univ., 652 N.Y.S.2d 146, 148 (N.Y. App. Div. 1997).

(160.) Id.

(161.) See id.

(162.) 176 Cal. Rptr. 809, 817 (Cal. Ct. App. 1981).

(163.) Id. The court squarely rejected the plaintiff's attempt to compare the role of the university to that of a bartender who is liable under the dram shop statute. See id. at 289-90 ("There is an obvious distinction between 'giving' or 'furnishing' alcoholic beverages and the failure to stop a drinking party or parties."); accord Allen v. Rutgers, 523 A.2d 262, 266 (N.J. Super. Ct. App. Div. 1987) ("Rutgers neither sells nor serves any alcoholic beverages consumed by violators, nor is it under any common law or statutory duty to protect patrons against the results of their voluntary intoxication.").

(164.) Lloyd v. Alpha Phi Alpha Fraternity, No. 96-CV-348, 1999 WL 47153, at *3 (N.D.N.Y. Jan. 26, 1999) "[T]he university expressly provided in its student handbook that certain conduct by its students was prohibited. We reject plaintiff's contention that in so doing the university voluntarily assumed the duty to take affirmative steps to supervise plaintiff and prevent him from engaging in the prohibited activity." Id. (quoting Rothbard v. Colgate Univ., 652 N.Y.S.2d 146, 148 (N.Y. App. Div. 1997)). Contra Furek v. Univ. of Del., 594 A.2d 506, 520 (Del. 1991) (stating university policy led to assumed duty). In Furek, the court indicated that the university's policy against hazing "constituted an assumed duty which became 'an indispensable part of the bundle of services which colleges ... afford their students.'" Furek, 594 A.2d at 526 (alternation in original) (quoting Mullins v. Pine Manor Coll., 449 N.E. 2d 331, 336 (Mass. 1983)). The court modulated its pronouncement by adding, "[b]ecause of the extensive freedom enjoyed by the modern university student, the duty of the university to regulate and supervise should be limited to those instances where it exercises control." Furek, 594 A.2d at 522.

(165.) See Garofalo v. Lambda Chi Alpha Fraternity, 616 N.W.2d 647, 650-51, 654-56 (Iowa 2000) (describing facts of case, holding, analysis of court as to liability of fraternity and individuals).

(166.) Id. at 654.

(167.) Id. at 150.

(168.) See id. at 651 (explaining events leading to student's death).

(169.) See Garofalo, 616 N.W.2d at 653-54.

(170.) Id. at 654. Although the University of Iowa was not a defendant in this case, the court's analysis of duty and special relationship was analogous to other negligence cases where universities were sued.

(171.) Garofalo v. Lambda Chi Alpha Fraternity, 616 N.W.2d 647, 654 (Iowa 2000).

(172.) The enactment of rules might set a higher standard than that which is required by the reasonableness standard. Thus, a university must act reasonably under the circumstances. However, enforcement of the rules could involve a higher degree of care, that is, one that is much loftier than the minimum standard required under the law. One has no duty to attain the most elevated level of care.

(173.) Bradshaw v. Rawlings, 612 F.2d 135, 141 (3d Cir. 1979) (stating college regulation not sufficient to establish custodial relationship between university and its students).

(174.) Beach v. Univ. of Utah, 726 P.2d 413, 419 n.5 (Utah 1986).

(175.) That duty is normally only found in cases involving criminal acts by third parties such as rapes, shootings, and violent hazing. See Furek v. Univ. of Del., 594 A.2d 506, 520 (Del. 1991) (holding university owed duty to hazing victim); see also supra notes 111-18 and accompanying text (discussing exceptions to general rule). The societal interest in curbing such heinous acts may be shaping the courts' view of duty in those instances.

(176.) Beach, 726 P.2d at 419.

(177.) Morrison v. Kappa Alpha Psi Fraternity, 738 So. 2d 1105, 1116 (La. Ct. App. 1999).

(178.) Id. at 1115.

(179.) See id. at 1116-17 ("[B]reach of duty is a question of fact, or a mixed question of law and fact, and the reviewing court must accord great deference to the facts found and the inferences drawn by the jury.").

(180.) See Univ. of Denver v. Whitlock, 744 P.2d 54, 62 (Colo. 1987) (finding no special relationship between plaintiff and university, thus no duty); Garofalo v. Lambda Chi Alpha Fraternity, 616 N.W.2d 647, 653 (Iowa 2000) (finding no duty on part of fraternity towards member).

(181.) See Davidson v. Univ. of N.C., 543 S.E.2d 920, 930 (N.C. Ct. App. 2001).

(182.) Id.

(183.) Id. at 928. As noted, however, this case is not persuasive authority in alcohol-related suits because no alcohol use was involved.

(184.) Timothy M. McLean, Note, Tort Liability of Colleges and Universities for Injuries Resulting from Student Alcohol Consumption, 14 J.C. & U.L. 399, 405 (1987).

(185.) See Morrison v. Kappa Alpha Psi Fraternity, 738 So. 2d 1105, 1113 (La. Ct. App. 1999).

(186.) See Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2525 (2013) ("[T]his standard requires the plaintiff to show 'that the harm would not have occurred' in the absence of--that is, but for--the defendant's conduct.").

(187.) Morrison, 738 So. 2d at 1117.

(188.) Id.

(189.) Id.

(190.) See id.

(191.) Morrison v. Kappa Alpha Psi Fraternity, 738 So. 2d 1105, 1117 (La. Ct. App. 1999).

(192.) Id.

(193.) See Palsgraf v. Long Island R.R. Co., 162 N.E. 99, 100 (N.Y. 1928) (providing traditional explanation of proximate cause).

(194.) McCain v. Fla. Power Corp., 593 So. 2d 500, 502 (Fla. 1992).

(195.) Id. at 502-503.

(196.) Williamson v. Liptzin, 539 S.E.2d 313, 319 (N.C. Ct. App. 2000) (quoting Hairston v. Alexander Tank & Equip. Co., 311 S.E.2d 559, 565 (N.C. 1984)). In this case, the student-shooter sued the school's therapist for not preventing him from engaging in violent acts and for negligently causing the shooter himself to be shot in the legs by police. See id. at 315-16.

(197.) Id. at 319 (footnote omitted) (citations omitted).

(198.) Id. at 320.

(199.) Id. at 319 (quoting William L. Prosser, LAW OF TORTS [section] 50, at 303 (3d ed. 1964)).

(200.) Williamson, 539 S.E.2d at 319 (quoting Phelps v. Winston-Salem, 157 S.E.2d 719, 723 (N.C. 1967)).

(201.) Palsgraf v. Long Island R.R. Co., 162 N.E. 99, 104-105 (N.Y. 1928).

(202.) 523 A.2d 262, 263-64 (N.J. Super. App. Div. 1987).

(203.) See id. at 264.

(204.) See id. at 264-65.

(205.) Id. at 266.

(206.) Allen, 523 A.2d at 266-67.

(207.) Id. at 266.

(208.) Allen v. Rutgers, 523 A.2d 262, 266 (N.J. Super. App. Div. 1987).

(209.) See Freeman v. Busch, 150 F. Supp. 2d 995, 1003 (S.D. Iowa 2001) (finding actions by defendants superseding causes relieving college of liability).

(210.) See id. at 998-99 (describing factual background of case).

(211.) See id. at 998.

(212.) See id. at 999.

(213.) See Freeman, 150 F. Supp. 2d at 1002.

(214.) See id. at 1003 (discussing Resident Assistant's liability).

(215.) See Freeman v. Busch, 150 F. Supp. 2d 995, 1003 (S.D. Iowa 2001) ("Foreseeable intervening forces are within the scope of the original risk, and therefore do not relieve the defendant from liability.").

(216.) Id.

(217.) Id.

(218.) See Baldwin v. Zoradi, 176 Cal. Rptr. 809, 811 (Cal. Ct. App. 1981).

(219.) See id. at 813 (discussing rule and duties arising from it).

(220.) See id. at 815 (explaining university's rules).

(221.) See id.

(222.) Baldwin, 176 Cal. Rptr. at 816.

(223.) Peter F. Lake & Joel C. Epstein, Modern Liability Rules and Policies Regarding College Student Alcohol Injuries: Reducing High-Risk Alcohol Use Through Norms of Shared Responsibility and Environmental Management, 53 Okla. L. Rev. 611, 614 (2000).

(224.) See Zavala v. Regents of Univ. of Cal., 178 Cal. Rptr. 185 (Cal. Ct. App. 1981).

(225.) See id. at 187-88 (explaining court's application of comparative negligence doctrine).

(226.) See id.

(227.) See id. at 186 (describing factual history of case).

(228.) Zavala, 178 Cal. Rptr. at 187.

(229.) Allen v. Rutgers, 523 A.2d 262, 264 (N.J. Super. Ct. App. Div. 1987).

(230.) See id.

(231.) Id. at 265.

(232.) Id.

(233.) See Torres v. Sarasota Cnty. Pub. Hosp. Bd., 961 So. 2d 340, 345 (Fla. Dist. Ct. App. 2007). The Torres court explained: "Damages are measured by comparing the condition plaintiff would have been in, had the defendants not been negligent, with plaintiff's impaired condition as a result of the negligence." Id. (internal citation omitted).

(234.) Univ. of Denver v. Whitlock, 744 P.2d 54, 56 (Colo. 1987) (stating total damages awarded).

(235.) See id.

(236.) Id.

(237.) See id.

(238.) Whitlock, 744 P.2d at 62.

(239.) See Morrison v. Kappa Alpha Psi Fraternity, 738 So. 2d 1105, 1121 (La. Ct. App. 1999) (describing plaintiff's damages).

(240.) Id.

(241.) See id. (explaining reasoning behind lowering damages).

(242.) Id. at 1125 (Stewart, J., concurring in part and dissenting in part). Brueckner v. Norwich Uniersity is another case involving hazing where the court held that the college was liable to the student for injuries. 730 A.2d 1086 (Vt. 1999). In that case, the court upheld an award of compensatory damages, but set aside an award of punitive damages, as the court did not find malice. See id.

(243.) See, e.g., COLO. Rev. Stat. Ann. [section] 24-10-114(1) (West 2014); Fla. Stat. Ann. [section] 768.28(5) (West 2014); Va. Code Ann. [section] 8.01-195.3 (West 2014).

(244.) See [section] 768.28(5).

(245.) See Michelle Findley, Note, Statutory Tort Caps: What States Should Do When Available Funds Seem Inadequate, 46 IND. L. Rev. 849, 854 (2013) ("The fact that recoveries in tort against the government are funded by taxpayers' dollars makes tort claim caps a necessity.").

(246.) See COLO. Rev. STAT. Ann. [section] 24-10-114(1) (West 2014); Fla. STAT. Ann. [section] 768.28(5) (West 2014); Ga. CODE Ann. [section] 50-21-29(b) (West 2014); IDAHO CODE Ann. [section] 6-926(1) (West 2014); 705 ILL. COMP. STAT. ANN. 505/8(d) (West 2014); IND. CODE Ann. [section] 34-13-3-4(a) (West 2014); Kan. STAT. Ann. [section] 75-6105(a) (West 2014); Ky. Rev. STAT. Ann. [section] 44.070(5) (West 2014); La. Rev. STAT. Ann. [section] 13:5106(B)(1)-(2) (2014); Me. Rev. Stat. Ann. tit. 14, [section] 8105(1) (2014); Md. Code Ann., State Gov't [section] 12-104(a)(2) (West 2014); Mass. Gen. Laws Ann. ch. 258, [section] 2 (West 2014); Minn. Stat. Ann. [section] 3.736(4) (West 2014); Miss. Code Ann. [section] 11-46-15(1) (West 2014); Mo. Ann. Stat. [section] 537.610(2) (West 2014); Mont. Code Ann. [section] 2-9108(1) (West 2013); NEB. Rev. STAT. Ann. [section] 81-8,224(1) (West 2014) (providing legislature must review all claims above certain amount before can be paid); NEV. Rev. STAT. Ann. [section] 41.035(1) (West 2014); N.H. Rev. STAT. Ann. [section] 541-B:14(I) (2014); N.M. STAT. Ann. [section] 41-4-19(A)-(B) (West 2014); N.C. Gen. STAT. Ann. [section] 143-299.2(a) (West 2014); N.D. CENT. CODE Ann. [section] 32-12.2-02(2) (West 2013); Okla. STAT. Ann. tit. 51, [section] 154(A) (West 2014); Or. Rev. STAT. Ann. [section] 30.271(2)-(3) (West 2014); 42 PA. CONS. STAT. Ann. [section] 8528(b) (West 2014); R.I. Gen. Laws Ann. [section] 9-31-2 (West 2014); S.C. CODE Ann. [section] 15-78-120(a)(1)-(3) (2013); TENN. CODE Ann. [section] 9-8-307(e) (West 2014); Tex. CODE Ann. [section] 101.023(a) (West 2013); UTAH CODE Ann. [section] 63G-7-604(1) (West 2014); VT. STAT. Ann. tit. 12, [section] 5601(b) (West 2014); VA. CODE Ann. [section] 8.01-195.3 (West 2014); WYO. STAT. Ann. [section] 1-39-118(a) (West 2014). Additionally, Delaware limits damages against municipalities and counties without limiting damages against the state. See Del. CODE Ann. tit. 10, [section] 4013(a) (West 2014).

(247.) See Alaska Stat. Ann. [section] 09.50.250(1) (West 2014); Cal. Gov't Code [section] 815(a) (West 2014); Cal. Gov't Code 815.3(a) (West 2014); Colo. Rev. Stat. Ann. [section] 24-10-106(1) (West 2014); Del. Code Ann. tit. 10, [section] 4001 (West 2014); GA. CODE Ann. [section] 50-21-24 (West 2014); IDAHO CODE Ann. [section] 6-904(1) (West 2014); 745 Ill. Comp. Stat. Ann. 5/1 (West 2014); Iowa Code Ann. [section] 669.14(1) (West 2014); Kan. Stat. Ann. [section] 75-6104(e) (West 2014); Me. Rev. STAT. Ann. tit. 14, [section] 8104-B(3) (2014); MICH. COMP. Laws Ann. [section] 691.1407(1)-(2) (West 2014); MISS. CODE Ann. [section] 11-46-9(1)(d) (West 2014); N.J. STAT. Ann. [section] 59:2-1(a) (West 2014); N.M. STAT. Ann. [section] 41-4-4(A) (West 2014); S.C. CODE Ann. [section] 15-78-60(5) (West 2013); WYO. STAT. Ann. [section] 1-39-104(a) (West 2014).

(248.) See Robert C. Cloud, Qualified Immunity for University Administrators and Regents, 131 Ed. Law Rep. 561, 568 (1999) (discussing public universities and governmental immunity).

(249.) Peter F. Lake, The Rise of Duty and the Fall of In Loco Parentis and Other Protective Tort Doctrines in Higher Education Law, 64 Mo. L. Rev. 1, 6-7 (1999) (providing historical context).

(250.) See id.

(251.) See generally Hoye, supra note 48 (discussing qualified immunity as raised as defense in numerous cases).

(252.) 227 P. 243 (Cal. Dist. Ct. App. 1924) (holding university immune from liability for negligent acts of physician they employed).

(253.) See McLean, supra note 184, at 400 (explaining charity exemption for private universities); see also John T. Montford & Will G. Barber, 1987 Texas Tort Reform: The Quest for a Fairer and More Predictable Texas Civil Justice System, 25 HOUS. L. Rev. 1005, 1039-44 (1988) (describing charitable immunity "broadly applied to a variety of charities including ... educational institutions").

(254.) See Hamburger v. Cornell Univ., 148 N.E. 539, 541 (N.Y. 1925).

(255.) Lax v. Princeton Univ., 779 A.2d 449, 452 (N.J. Super. Ct. App. Div. 2001) (finding university qualified under state's Charitable Immunity Act).

(256.) See Hoye, supra note 48, at 769-75 (giving examples of cases where universities asserted defense).

(257.) Id. at 775 (acknowledging some erosion of "no duty" rule in hazing cases and college sports injury suits).

(258.) As the parent of a college student, I wish fervently that if a harmful situation were to arise, the university would protect my daughter from injury and folly. On the other hand, I know from being a university administrator for more than twenty years that such a wish is unreasonable and impracticable. Moreover, it is not legally required.

(259.) See Tamar Lewin, Roommates, The Online Version, N.Y. TIMES (Sept. 13, 2006), As%2C%5B%22RI%3A6%22%2C%22RI%3A18%22%5D (describing parental involvement in their children's roommate placements at various universities); see also Bonnie Rochman, Hover No More: Helicopter Parents May Breed Depression and Incompetence in Their Children, TIME (Feb. 22, 2013), children/, archived at (providing examples of parental over-involvement).

(260.) See Lewin, supra note 259. "Given the proliferation of 'helicopter parents,' hovering and ready to swoop down and rescue their children, it was perhaps inevitable that this year's assignments of roommates prompted a stream of complaints to university housing offices, asking for a change of roommate because of something posted on Facebook." Id. "Sexual orientation, drinking, drugs and tattoos seem to prompt the most parental complaints to colleges." Id.

(261.) See Rochman, supra note 259.

(262.) See Rebecca James, Coed Dorms, Coed Floors--Now, Coed Rooms, FREE REPUBLIC (Dec. 3, 2007),, archived at (providing history of coed dormitories at universities)

(263.) See Linda Churney, Student Protest in the 1960s, YALE-NEW HAVEN TEACHERS INST. (Feb. 03, 1979),, archived at (providing history of student unrest).

(264.) Jerry M. Lewis & Thomas R. Hensley, The May 4 Shootings at Kent State University: The Search for Historical Accuracy (Summer 1998),, archived at (discussing Kent State shootings, responses, and implications).

(265.) 176 Cal. Rptr. 809, 818 (Cal. Ct. App. 1981).

(266.) 612 F.2d 135, 139-40 (3d Cir. 1979).

(267.) See supra note 47 and accompanying text (pointing out court's reluctance to find universities negligent in circumstances involving underage drinking).

(268.) See Rothbard v. Colgate Univ., 652 N.Y.S.2d 146, 148 (N.Y. App. Div. 1997) (rejecting contention university's handbook constituted assumption of duty to supervise students).

(269.) See Baldwin v. Zoradi, 176 Cal. Rptr. 809, 817 (Cal. Ct. App. 1981) ("Although the university reserved to itself the right to take disciplinary action for drinking on campus, this merely follows state law."); see also Allen v. Rutgers, 523 A.2d 262, 266 (N.J. Super. Ct. App. Div. 1987).

While the implementation of this rule may have the effect of protecting patrons against their own folly, such consequence does not require that the university be solely responsible for injuries resulting from violations of the regulation and the failure or inability of the university personnel to effectively enforce the prohibition. Alien, 523 A.2d at 266.

(270.) See Booker v. Lehigh Univ., 800 F. Supp. 234, 241 (E.D. Pa. 1992) (explaining imposing duty to monitor thousands of students would place university in loco parentis); see also Bash v. Clark Univ., No. 06745A, 2006 WL 4114297, at *5 (Mass. Super. Ct. Nov. 20, 2006) (stating burden of protecting students from voluntary drug use similar to protecting student's moral wellbeing).

(271.) See Baldwin, 176 Cal. Rptr. at 813 (finding lack of liability for university's nonfeasance with regards to student's injuries sustained in crash after drinking); see also McLean, supra note 184, at 403 (describing distinction between nonfeasance, misfeasance in context of university's liability for students' accidents).

(272.) See Baldwin, 176 Cal. Rptr. at 812 (stating liability attaches for nonfeasance only in event special relationship exists between university and student).

(273.) Beach v. Univ. of Utah, 726 P.2d 413, 417-18 (Utah 1986) (disagreeing with plaintiff's claim about university's duty to prevent students from violating state liquor laws).

(274.) See Bradshaw v. Rawlings, 612 F.2d 135, 141 (3d Cir. 1979).

(275.) See Baldwin v. Zoradi, 176 Cal. Rptr. 809, 812 (Cal. Ct. App. 1981).

(276.) See Turner et al., supra note 17, at 86-87 (describing program).

(277.) See id. at 86 (describing second phase of program including educational presentations).

(278.) See id. (defining goals of program).

(279.) Id. at 87.

(280.) See Turner et al., supra note 17, at 86 (explaining method and goals of program).

(281.) See id. (discussing ultimate goal of whole program over six-year assessment period).

(282.) See id. (describing information provided to students).

(283.) See id. at 90 ("[T]he chance of avoiding all consequences of drinking steadily improved over time, and the chance of students drinking in the most problematic ways ... steadily declined.").

(284.) Turner et al., supra note 17, at 90.

(285.) Id.

(286.) Id.

(287.) Id. The researchers used regression analysis to isolate factors and to determine the statistical significance of exposure to social norming messages and the resulting decrease in negative consequences related to alcohol use. See id.

(288.) SHADE Program, UNIV. OF ARIZ., (last visited Nov. 2, 2014), archived at (describing program and student reactions).

(289.) See id. (explaining program's purpose).

(290.) See Freeman v. Busch, 150 F. Supp. 2d 995, 1002 (S.D. Iowa 2001) (addressing importance of student independence in university setting).

(291.) See NOT ALONE REPORT, supra note 4, at 7-10. In addition, colleges will be held accountable for violations of Title IX if incidents of rape and other sexual assaults are not properly investigated and addressed. See id. at 16-17 (describing law and potential violations).

(292.) See Nicholas W. Woodfield, The Policy/Operational Dichotomy in Intra-State Tort Liability: An Example of the Ever-Continuing Transformation of the Common Law, 29 DENV. J. Int'L L. & POL'Y 27, 2930 (2000). Woodfield explained:

   Because the laws of each respective State are continually
   developing and evolving in an attempt to reflect and define the
   contemporary values and morals of their society in order to achieve
   a more perfect sense of justice as viewed from within each
   State.... ... as a society continues to evolve and develop, its
   common law will also continue to evolve and develop to reflect this


(293.) Univ. of Denver v. Whitlock, 744 P.2d 54, 62 (Colo. 1987).

(294.) See Baldwin v. Zoradi, 176 Cal. Rptr. 809, 818 (Cal. Ct. App. 1981).

(295.) See Rochman, supra note 259 (stating high levels of parental involvement harmful to children and can lead to depression).

(296.) Id. (quoting Holly Schiffrin, lead author of study).

(297.) Id.

(298.) Camille Paglia, It's Time to Let Teenagers Drink Again, TIME MAGAZINE, May 19, 2014, at 22.

(299.) See supra note 12 and accompanying text (referring to studies taken over decades finding decline in underage drinking).

(300.) See AMETHYST INITIATIVE, (last visited Nov. 2, 2014), archived at (including list of 136 college presidents and chancellors who support drinking age change). Their statement is that "[a] culture of dangerous, clandestine 'binge-drinking'-often conducted off-campus" exists, and that trying to enforce abstinence from alcohol "as the only legal option has not resulted in significant constructive behavioral change among our students." Id. The statement continues:

   Adults under 21 are deemed capable of voting, signing contracts,
   serving on juries and enlisting in the military, but are told they
   are not mature enough to have a beer.

   By choosing to use fake IDs, students make ethical compromises that
   erode respect for the law. How many times must we relearn the
   lessons of prohibition?


(301.) Id.

(302.) Paglia, supra note 298, at 22.

(303.) See supra note 276-87 and accompanying text (discussing study and its successes). The cultural change may come as a result of cases that involve the actions of intoxicated third parties. In a single year, more than 690,000 students between the ages of eighteen and twenty-four reported that they had been assaulted by another student who had been drinking. See NIAAA Report, supra note 2, at 1 (providing statistics). Societal interest in preventing tragic, violent attacks by drunken students is significant. In the few cases where courts have found that universities owed a duty to protect their students from alcohol-related injuries, the facts have involved attacks by third parties. Although the predominant rule is that universities have no special relationship with their students, and thus, no duty toward them, that rule may be eroded in particularly heinous cases.

(304.) Barry Glassner & Morton Schapiro, Grounding the Helicopter Parent, WASH. POST (Aug. 24, 2012), a80b-9f898562d010_story.html, archived at

(305.) Id.

(306.) Perri Klass, College Prep, This Time for Health, N.Y. TIMES (Aug. 19, 2013),, archived at

(307.) See id.

(308.) See id.

(309.) Glassner & Schapiro, supra note 304.

(310.) There are various ways to crack down on alcohol abuse on campus in addition to university procedures and policies. Bringing a negligence suit against the university is unlikely to lead to relief for injured students or their families. However, criminal charges can be filed against the offending students in unlawful situations such as those involving horrific hazing. See Lloyd v. Alpha Phi Alpha, No. 96-CV-348, 1999 WL 47153, at *11 (N.D.N.Y. Jan. 26, 1999) (referencing possibility of criminal punishment for hazing).

(311.) See NIAAA Report, supra note 3, at 3 (providing statistics).

(312.) Tanja H. v. Regents of the Univ. of Cal., 278 Cal. Rptr. 918, 926 (Cal. Ct. App. 1991).

(313.) Id. at 920.

(314.) Beach v. Univ. of Utah, 726 P.2d 413, 418 n.4 (Utah 1986).
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Title Annotation:IV. Parental Expectations, Students' Role, and the Universities' Responsibilities through V. Conclusion, with footnotes, p. 98-130
Author:Bendlin, Susan S.
Publication:Suffolk University Law Review
Date:Jan 1, 2015
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