Rachel Wager v. Alexandria Moore et al. (2013)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO STRIKE (# 117)

On May 20, 2013, the defendant, Mitchell College, moved to strike count three of the plaintiff's revised complaint.   The defendant also filed a memorandum of law in support of the motion.   On September 3, 2013, the plaintiff, Rachel Wager, filed a memorandum of law in opposition to the defendant's motion to strike.   The motion was argued at short calendar on October 7, 2013.

BACKGROUND

On February 13, 2013, the plaintiff filed a three-count complaint against defendants Alexandria Moore and Mitchell College.   On April 25, 2013, in compliance with an order issued by

The defendant's motion to strike argues that the facts alleged in the complaint are insufficient to establish that the defendant owed the plaintiff a duty.   Specifically, the defendant argues that a college has no general duty to guarantee the safety of its students and cites two Connecticut trial court decisions (as well as numerous out-of-state decisions) to support that position.   The plaintiff's memorandum in opposition counters that the plaintiff was a student enrolled in the “disability student services program” at Mitchell College (a well-pleaded fact found in the revised complaint) and, therefore, the defendant had voluntarily assumed a special relationship with the plaintiff and owed her a corresponding duty of care.

The existence of a duty is generally an issue of law for the court to decide.   See Gazo v. Stamford, 255 Conn. 245, 250, 765 A.2d 505 (2001).   Our state's appellate courts have not yet addressed whether colleges and universities owe a general, fiduciary duty to ensure the safety of their students.   Connecticut trial courts, on the other hand, have discussed the issue at length and have denied the existence of such a duty.  Pawlowski v. Delta Sigma Phi, Superior Court, judicial district of New Haven, Docket No. CV–03–0484661–S (January 23, 2009, Lager, J.) [47 Conn. L. Rptr. 132];  Leary v. Wesleyan University, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV–05–5003943–S (March 10, 2009, Jones, J.) [47 Conn. L. Rptr. 340].  “The premise of modern post-secondary education is that students have both rights and responsibilities and that universities do not have a general duty to insure their safety.”  Pawlowski v. Delta Sigma Phi, supra, Docket No. CV–03–0484661–S.  “In the absence of affirmative conduct on the part of a university, courts have been reluctant to find that negligent administration of a university's rules or policies gives rise to an enforceable duty.”  Id.

Our courts have, however, recognized that a duty may arise when a university affirmatively assumes direct responsibility for student safety.   McClure v. Fairfield University, Superior Court, judicial district of Waterbury, Docket No. CV–00–0159028–S (June 19, 2003, Gallagher, J.) [35 Conn. L. Rptr. 169].   In McClure, the court found that Fairfield University owed the student a special duty given that it had endeavored to provide an off-campus shuttle service for its students, concluding that “the Restatement makes clear, [Section 323] applies to any undertakings to render service to another which the defendant should recognize as necessary for the protection of the other person and the harm to be protected against results from negligence in performance or from failure to exercise reasonable care to complete it ․” ¹ Id. Moreover, while the court in Leary v. Wesleyan University rejected the plaintiff's general fiduciary duty argument, it accepted a special duty theory based on the fact that university officials had voluntarily brought the student to the hospital in response to his panic attack.  Leary v. Wesleyan University, supra, Docket No. CV–05–5003943–S.   The court emphasized that “courts in this and other jurisdictions have imposed a duty upon universities to reasonably render voluntary services under § 323.”  Id., citing Mullins v. Pine Manor College, 389 Mass. 47, 449 N.E.2d 331 (1983), and Furek v. University of Delaware, 594 A.2d 506 (Del.1991).

ANALYSIS

In the present case, the plaintiff's revised complaint has alleged that she was enrolled in a “disability student services program” offered by Mitchell College which included “academic coaching and counseling.”   These facts, if true, suggest that there existed a relationship different than the traditional university/student relationship before the court in Pawlowski.   Just as Fairfield University chose to provide off-campus bus services in McClure and just as Wesleyan University officials chose to provide care to the student in Leary, Mitchell College chose to offer a disability student service program to the plaintiff.   In light of that choice, the school has a duty to execute that program in a reasonable manner.   These well pleaded facts—when viewed in the manner most favorable to the plaintiff—support the existence of a special duty owed by the defendant to the plaintiff.

ORDER

For the foregoing reasons, the defendant's motion to strike (# 117) is denied.

Devine, J.

FOOTNOTES

FN1. Section 323 of the Restatement (Second) of Torts specifically states:  “One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because of the other's reliance upon the undertaking.”.  FN1. Section 323 of the Restatement (Second) of Torts specifically states:  “One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because of the other's reliance upon the undertaking.”

Devine, James J., J.