Mary-Pat Cormier: Avoiding the perils of off-campus housing

Liability of higher-education institutions (HEIs) for off-campus housing risks is tricky, focusing on the institution’s role in off-campus-housing arrangements.

If an HEI “assumes a duty” to its students who rely on that duty, it must fulfill the duty with due care. This general rule applies to off-campus safety: For example, if the college offered a limited shuttle bus service to or from off-campus events where it was aware of drinking, it can be liable for injuries to its student struck off campus by a car driven by an intoxicated student returning from an off-campus party. By offering the shuttle service, the HEI assumed duties to students for safety while traveling between the campus and the parties.

In the off-campus housing context, the “assumed duty” theory was determinative in a 2006 Delaware Supreme Court case. A student was assaulted by the boyfriend of another student in the parking lot of off-campus housing. The housing was “offered” by the defendant university to the plaintiff who did not get into a residence. The case went forward on negligence and detrimental reliance claims, because the university “assumed” the duty to exercise reasonable care when it undertook to provide off-campus housing.

Likewise, in 2014, a New Jersey case involved a student injured by a broken window in off-campus housing that the defendant college “arranged.” The plaintiff relied on the duty of care owed by the HEI with respect to the off-campus housing it “arranged.” Therefore, it had a duty to warn the student of the defective window in the off-campus housing unit.

Where a court may “extend” a duty

Courts seem willing to “extend” duties to an HEI, related to off-campus housing, even where the institution has not “assumed” a duty.

In Massachusetts, a landlord near Boston College complained of slander and tortious interference by BC arising from alleged statements by BC to students. The court observed BC could have a duty regarding safety to a student living off campus, because it acted like it had a duty: 1) the college had an off-campus housing office (OCHO); 2) it had a Community Assistance Patrol between students and surrounding communities; 3) BC police responded to off-campus housing disturbances involving BC students; 4) the BC student handbook referred to students’ “responsible citizenship ... in local neighborhoods.”

A 2014 New Jersey case involved the liability of a private school for the violation of fire codes in off-campus housing. The school spun-off its dorms into a separate entity that the court concluded was little more than a legal fiction, and it found the school liable for the violations. The court suggested that a school may be responsible for statutory violations in off-campus housing, where there is a “mandate to liberally construe an Act to achieve the goal of fire safety.” A school may be liable for fire code violations off campus: 1) where there is some affiliation or relationship between the landlord and the school and 2) due to the nature of violated laws—i.e. fire/safety violations.

Risk management concerns

These cases demonstrate a continuum or spectrum of liability exposures for off-campus housing (Fig. 1). Risk management strategies for the liability spectrum, include:

• Language where the student waives any legal claims that they may have against the HEI arising out of off-campus housing issues, assumption of risk or limitation of liability to gross negligence in written information provided to students by an OCHO.
• Remove properties on OCHO list after written complaints—with or without investigation of complaints by the OCHO or other office of the HEI to determine whether the complaints are valid;
• Allow students to rate off-campus housing and landlords in OCHO database.
• Where a college is “arranging” or “offering” off-campus housing pursuant to a written agreement with a landlord, include indemnification, limitation of liability to gross negligence language in the contract, and “Additional Insured” status on landlord’s liability policies.
• Educate/empower students on basic landlord-tenant rights and code violations, including fire safety.

Regarding insurance, if a college or university has potential liability for off-campus housing (“assumed duty,” “offered” or “arranged”):

• Liability policies should contemplate losses taking place at those locations.
• Liability policies should respond to negligence claims, subject to exclusions, terms and conditions whereas a breach of contract claim or a claim arising out of fire-code, housing-code, or building-code violation would likely not be covered by a liability insurance policy.
• If a school has reason to know of pre-existing hazardous conditions in off-campus housing, coverage could be barred.
• If the claim is related to a prior claim or act, there may be no coverage at all, depending on whether the insured knew of the prior matter or provided notice to the insurer.

For an HEI that owns or manages off-campus housing, these same concerns apply to liability policies. Plus, those properties are susceptible to “increase in hazard” theories, which could limit property coverage. (Generally, “increase in hazard” means that where there is an increase in hazard to insured property in the knowledge or control of the insured, insurance coverage will be suspended. If a loss occurs while that coverage is suspended, an insurance claim may be denied.

If the hazard is cured, a loss after the reinstatement is covered. An increase in hazard will generally not be found if there has been merely a casual or temporary change in character of the premises.

An insured’s negligence is not an increase in the hazard, unless it results in a change to the property, use, or occupancy.) Where there is an increase in hazard to insured property, which effects the safety of property–like increase in occupancy in the knowledge or control of the insured, coverage will be jeopardized.

Understanding where an HEI falls on the spectrum of liability exposures is essential to a risk-management strategy.

Mary-Pat Cormier is a partner in the Massachusetts law firm Bowditch & Dewey. This piece originated on the Web site of the New England Board of Higher Education (nebhe.org), on whose editorial board Robert Whitcomb, the overseer of New England Diary, used to sit.

Ariel Sullivan: Illegal procedure? Title IX and sexual assault

Via our friends at the New England Journal of Higher Education, part of the New England Board of Higher Education  (nebhe.org) BOSTON Florida State University quarterback and Heisman Trophy winner Jameis Winston was recently cleared of sexual assault charges following the university’s two-day investigative hearing. The high-profile investigation was launched under Title IX, which requires schools to investigate such allegations even in the absence of criminal charges. Winston’s attorney immediately took to his Twitter account to share the news of the outcome—the finality of which is pending any appeal by the complainant—and provide the following emphasized excerpt from the hearing panel’s decision “In sum the preponderance of the evidence has not shown that you are responsible for  any of the charged violations of [FSU’s Misconduct] Code.”

While most institutions do not face such intense public interest and ongoing media coverage of their Title IX investigations—typically reserved for cases involving Division I athletes—many are scrutinized by their campus community and the media for the way that they respond, or fail to respond, to allegations of sexual assault. Tack on the fact that nearly 100 colleges and universities are currently under investigation by the U.S. Department of Education’s Office for Civil Rights (OCR) for possible violations of Title IX, and the conclusion is clear: Colleges need to be better prepared to respond immediately and appropriately to complaints of student-on-student sexual violence in accordance with the law and their internal policies.

OCR attempted to provide guidance to help colleges comply with their Title IX obligations through a 45-page guidance document entitled “Questions and Answers on Title IX and Sexual Violence,” published on April 29, 2014. Since then, colleges have been scrambling to ensure compliance with this latest guidance and avoid becoming the subject of an OCR investigation. This one-sided approach leaves colleges vulnerable to claims of negligence and mistreatment by the accused, whose rights are barely recognized by OCR. Moreover, OCR’s guidance does not provide answers to the seemingly endless conundrums that arise in sexual violence cases, nor is it entirely consistent with other recently promulgated federal regulations. It is therefore of paramount importance that those in charge be capable of handling the competing interests that arise in responding to sexual violence complaints.

Best practices for college officials include:

• Be sensitive to the complainant’s emotions, needs and rights, while ensuring that the rights of the respondent are also met. One of the biggest risks colleges face in responding to sexual violence complaints is a subsequent claim or lawsuit by the complainant or the respondent. With regard to the complainant, such claims often stem from her perception that campus officials were not sensitive in the way that they spoke to the complainant throughout the process. OCR states that those in charge of responding to sexual violence complaints have training or experience working with and interviewing persons subjected to sexual violence, including the effects of trauma and associated neurobiological change, appropriate methods to communicate with students subjected to sexual violence, and cultural awareness regarding how sexual violence may impact students differently depending on their cultural backgrounds. By providing such training to those with responsibility for carrying out their Title IX procedures, colleges will help to ensure that appropriate sensitivity is employed in working with complainants. At the same time, they must ensure that their sensitivity toward the complainant does not infringe on the respondent’s right to a fair and impartial investigation, which is often the crux of subsequent claims brought by respondents.

• Employ interim measures to assist the complainant throughout the process, but ensure that the measures taken are reasonable and appropriate under the circumstances. For example, a complainant may ask the college to immediately suspend the respondent or bar the respondent from campus while the investigation is pending. Notably, such interim measures are not suggested in the OCR’s guidance. The practical approach is to employ such severe interim measures only in in the presence of aggravating factors such as the use of a weapon, threats of future violence, a group assault, or multiple claims against the same respondent.

• Be communicative and transparent about the complaint and the process, while remaining confidential and adhering to privacy laws. Like the sensitivity issue addressed above, subsequent claims arise from a perceived lack of communication regarding the process. Therefore, colleges should communicate with the complainant and respondent on a regular basis, and respond to their questions in an equal and impartial manner. At the same time, colleges should develop procedures for addressing concerns and inquiries from parents, students and the media related to Title IX investigations, in accordance with federal privacy laws and consistent with public relations objectives.

• Review and update Title IX policies in accordance with the Violence Against Women Reauthorization Act (“VAWA"), despite OCR’s suggestion to the contrary. OCR’s guidance insists that VAWA has no effect on a school’s obligations under Title IX. However, the final VAWA regulations published on Oct. 20, 2014, and effective July 1, 2015, indicate otherwise. Indeed, with regard to the presence of an advisor, the new VAWA regulations require colleges to allow both parties to be accompanied to any proceedings “by the advisor of their choice,” while OCR’s guidance merely states that if the college allows one party to have an advisor at the proceedings, it must do so equally for both parties.

• Develop and implement a memorandum of understanding (“MOU”) with local law enforcement that will allow the college to meet its Title IX obligations to resolve complaints of sexual violence promptly and equitably. The MOU should delineate responsibilities for responding to and investigating incidents and reports of sexual violence on and off campus, as well procedures for sharing information about students and employees who are the victim of, a witness to, or an alleged perpetrator of an offense of sexual violence.

As colleges bear more responsibility and are subjected to greater scrutiny than ever before in carrying out their obligations under Title IX, it is more important than ever for those in charge to follow these and other best practices to guide them in responding immediately and appropriately to reports of student-on-student sexual violence.

Ariel Sullivan is a partner in the Massachusetts law firm Bowditch & Dewey. She concentrates her practice in all aspects of labor and employment law.