PERLUSS, P. J. —
Katherine Rosen, a student at the University of California at Los Angeles (UCLA), suffered severe injuries after being attacked by
Damon Thompson transferred to UCLA in the fall of 2008. Shortly after enrolling in classes, Thompson sent several e-mails to his history professor, Stephen Frank, reporting that he was "angered" by "offensive" remarks other students had made to him during an examination. Thompson asserted that he was "outrage[d]" because he believed the students' conduct had affected his academic performance. Frank forwarded the e-mails to the chairman of the history department, who advised Frank to try to calm Thompson. The chairman also advised Frank to refer Thompson to "psychological services" if he believed Thompson was "genuinely paranoid or a potential threat."
In January of 2009, Thompson wrote a three-page letter to Robert Naples, the dean of students, alleging that a female resident in his dormitory had made "unwelcomed verbal sexual advances" toward him. Thompson also complained that other residents had made "accusations of a sexual nature about [him]"; questioned his "intelligence"; "disrupt[ed] his sleep cycle"; and "invaded [his] privacy" by distributing his "personal information ... via rumors." Thompson warned Naples that if the university failed to discipline
Several weeks later, Thompson sent e-mails to three other professors and teaching assistant Jenny Hernandez complaining that other students were "attempting to distract [him] ... by making offensive comments." Hernandez sent multiple e-mails to her supervising professor reporting that she had never heard any students insult Thompson and believed he might have psychological problems. According to Hernandez, Thompson was "withdrawn," frequently "talk[ed] to himself" and appeared "unstable." Hernandez believed his behavior was symptomatic of schizophrenia.
Assistant dean of students Cary Porter was notified of Thompson's situation and contacted Karen Minero, a member of UCLA's "Consultation and Response Team" (CRT). The CRT was responsible for providing advice and consultation to campus members who had concerns about the well-being of students. Porter also met with Thompson and encouraged him to seek medical help at UCLA's counseling and psychological services (CAPS).
On February 28, Thompson informed the resident director of his dormitory he had "heard a clicking sound that he believed to be a gun" and had previously heard "other residents talk about having a gun and shooting him." Thompson told the resident director that, in response to these incidents, his father had advised him that he could "hurt the other residents." Although Thompson had "thought about it," he decided he "wasn't going to do anything."
The resident director contacted the campus police, who interviewed Thompson and conducted a search of the room where the clicking noise had allegedly originated. After finding no weapon, the officers informed the director that they thought Thompson "needed a mental evaluation." Thompson agreed to be voluntarily escorted to the UCLA emergency room for a psychiatric evaluation. During the examination, Thompson complained of auditory hallucinations, paranoid thinking and a history of depression. In describing his symptoms, Thompson reported that he felt people were insulting him and heard "`people talk to [him] when there is no one there.'" Medical examiners diagnosed Thompson with paranoid delusions and possible schizophrenia disorder, but concluded he did not exhibit any signs of suicidal or homicidal ideation. Although Thompson rejected voluntary hospitalization for treatment, he agreed to begin taking antipsychotic drugs and to attend outpatient treatment at CAPS.
The resident director informed Cary Porter and the CRT about Thompson's dormitory incident and his subsequent mental evaluation. The CRT discussed
On March 11th and 12th, Thompson began treatment at CAPS, attending two sessions with psychologist Nicole Green. Although Green believed Thompson was suffering from schizophrenia, she concluded that he did not exhibit suicidal or homicidal ideation and had not expressed any intent to harm others. During a third session on March 18th, Thompson told Green he would not meet with a psychiatrist to discuss possible medications for his condition until he was able to determine whether the voices he was hearing were real. Thompson expressed frustration that nobody believed he was hearing voices and stated that he would try to record them.
At a fourth meeting on March 26th, Thompson told Green he did now believe he was experiencing auditory hallucinations and was amenable to a psychiatric evaluation. Thompson also reported that he continued to feel harassed by other students in his dormitory, which made him angry, but denied experiencing suicidal or homicidal ideation. Later the same day, Thompson met with CAPS psychiatrist Charles McDaniel and again denied experiencing suicidal or homicidal ideation. Thompson did, however, inform McDaniel he had previously experienced general "ideations of harming others," clarifying that he had never formulated an actual plan to harm anyone and never identified a specific victim. Thompson refused McDaniel's recommendation of voluntary hospitalization, but agreed to take psychotropic medications. McDaniel discussed Thompson with numerous CAPS staff members, who all agreed the patient did not meet the criteria for an involuntary psychiatric hold.
Thompson attended several additional CAPS sessions in April of 2009. On April 10th, Thompson informed Green he did not believe he needed to take his psychotropic medications and remained adamant that he had been a victim of harassment. A week later, Thompson told Green he was still experiencing occasional bouts of anger caused by "insults and harassment," but assured Green he had "no intention to act on impulse to harm physically, even if he feels like it." On April 24th, Thompson told McDaniel he intended to stop taking his medications. During each of his April sessions, Thompson consistently denied suicidal or homicidal ideations and denied having any intent to harm others. On April 27th, Thompson failed to attend a scheduled CAPS session and terminated his treatment shortly thereafter.
On June 3, 2009, Thompson was involved in an altercation at his dormitory. According to the campus police report, Thompson had knocked on the door of a sleeping resident, accused him of making too much noise and then pushed him. When the resident informed Thompson he had not been making any noise, Thompson pushed him again, stating "this is your last warning." As a result of the incident, Thompson was expelled from university housing and ordered to return to CAPS when the fall semester began.
Later in the summer semester, Thompson sent letters to two chemistry professors alleging that students and university personnel had made derogatory comments toward him. Although the letters named several individuals who were allegedly involved in the incidents, Thompson reported that he intended "to ignore [the comments], refrain [from] reacting and persist in producing the highest quality of work possible." When the fall semester started, Thompson made similar complaints to chemistry professor Alfred Bacher. In an e-mail sent September 29th, Thompson complained that he had obtained "poor results" with an experiment due to "disruption caused by other students in the lab."
On September 30th, Thompson attended a CAPS session that the university had mandated as part of his discipline for the June dormitory incident. Thompson met with Tanya Brown, who reported that Thompson displayed a guarded attitude, slowed speech, delusional thought processes and impaired insights. Thompson told Brown he still "occasionally" heard "voices of other students having `malice' toward him and making critical and racist comments." Thompson assured Brown he did not experience any impulsive thoughts or behaviors in response to the voices, had no intent to harm anyone (including those who had criticized him) and did not believe he had ever harmed anyone in the past. Thompson also met with McDaniel, who found Thompson to be guarded in discussing his condition. Thompson told McDaniel he now believed that some of his prior symptoms were the result of actual acts of racism or discrimination, rather than hallucinations. McDaniel recommended that Thompson start receiving treatment at UCLA's clinic for behavioral health services, which he agreed to do.
On October 6th, chemistry teaching assistant Adam Goetz e-mailed professor Bacher to report "another incident" that had occurred with Thompson. According to the e-mail, Thompson had alleged that a student called him stupid, described the student's physical appearance to Goetz and insisted that
Bacher forwarded Goetz's e-mail to Clark Porter and requested advice on how to respond. Porter contacted Minero at CRT, who expressed concern that Thompson had identified a specific "student in his class who he believe[d] [wa]s against him."
On the morning of October 7th, CAPS, CRT and administrators from UCLA's "Office of Residential Life" attempted to schedule a meeting to discuss Thompson. Nicole Green was instructed to contact Thompson and request that he schedule a CAPS counseling appointment. Thompson responded to her by e-mail, stating that he would try to schedule a meeting that week. Later the same day, a second chemistry teaching assistant e-mailed Bacher to report that a "student from another section" (later identified as Thompson) had accused "students of verbal harassment, thereby inhibiting his work." The teaching assistant had been present during the incident and did not see or hear any harassment.
Two days later, on the morning of October 9th, Minero met with Porter to discuss Thompson. Minero stated that she was trying to coordinate a meeting with CAPS and speak with each of Thompson's professors to "talk about the best way to handle the situation in the classroom." Minero was unsure, however, whether the Family Educational Rights and Privacy Act of 1974 (20 U.S.C. § 1232g) might prohibit her from sharing Thompson's medical information with other faculty members.
At approximately 12:00 p.m. that same day, Thompson was working in a chemistry laboratory when he suddenly attacked student Katherine Rosen with a kitchen knife. When campus police arrived, Thompson told them "they were out to get me" and complained that the other students had been "picking on him." Thompson also stated that he had been "provoked" by students in the "lab ... insulting [him]," explaining that similar incidents had happened on "several occasions in the past."
Rosen told investigating officers that she had been working in the chemistry laboratory for approximately three hours prior to the attack and "did not
Teaching assistant Goetz informed an investigating officer that Thompson had approached him on several occasions to complain about students "calling him stupid." Goetz also stated that on one occasion Thompson had identified "Rosen as being one of the persons that called him stupid."
Rosen filed a tort action against Thompson, the Regents of the University of California and several UCLA employees, including Alfred Bacher, Cary Porter, Robert Naples and CAPS psychologist Nicole Green.
The complaint further alleged that, prior to the date of the attack, UCLA had received numerous warnings regarding "the dangerous and violent propensities exhibited by [Thompson], the danger he posed to others and his serious need for psychological assistance and/or interventions." Despite these repeated warnings, UCLA "failed to take any action to protect its students from violent criminal attacks by [Thompson], to warn its students of potentially violent and dangerous propensities of [Thompson] and/or to control [his] reasonably foreseeable wrongful acts." Rosen alleged that as a direct and proximate result of these negligent acts, she was "violently attacked and almost murdered by [Thompson]," thereby suffering injury.
UCLA filed a motion for summary judgment arguing that Rosen's negligence claim failed for three reasons. First, UCLA asserted that unlike elementary and secondary schools, colleges and universities do not have a legal duty to protect their adult students from criminal conduct perpetrated by other students. According to UCLA, the mere fact Rosen was a student or that she had been on campus property when the attack occurred was insufficient to create a special relationship giving rise to a duty to protect her.
Second, UCLA argued that even if it did have a legal duty to protect its students from foreseeable criminal conduct, the undisputed evidence demonstrated that university personnel had acted appropriately in addressing the potential threat that Thompson posed to the campus community. In support, UCLA relied on two expert declarations concluding that the school had acted within the applicable standard of care and that Thompson's conduct was not reasonably foreseeable. Both experts explained that UCLA's violence prevention policies and mental health counseling met "common institutional practices for institutions of higher learning."
Third, UCLA argued that the school and its employees were immune from suit under Government Code sections 856 and 820.2, which preclude public entity liability for injury resulting from (1) a decision "[w]hether to confine a person for mental illness" (Gov. Code, § 856, subd. (a)) and (2) any "act or omission [that] was the result of the exercise of the discretion vested in [the public entity employee]" (Gov. Code, § 820.2). UCLA contended section 856 applied to Rosen's claims because "the heart of [her] case is effectively that the UCLA defendants should have locked up [Thompson] ... or somehow excluded him from campus." UCLA also argued section 820.2 applied because its employees' treatment decisions regarding Thompson involved personal deliberation and were therefore discretionary in nature.
In opposition, Rosen argued that several sources of law imposed a duty on UCLA to protect its students from foreseeable criminal conduct. First, Rosen contended that as a "possessor of land," UCLA owed a duty to protect students and other "business invitees" from foreseeable acts of misconduct on its campus. In support, Rosen cited Civil Code section 1714, subdivision (a), which provides that "[e]veryone is responsible ... for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property."
Third, Rosen argued UCLA owed a duty of care under the negligent undertaking doctrine because it had voluntarily elected to "protect the safety of UCLA students." Rosen theorized that by adopting various violence prevention measures and mental health protocols, UCLA had undertaken a duty to follow its procedures, which it had failed to do.
Fourth, Rosen argued there were disputed issues of material fact whether UCLA psychologist Nicole Green had discharged her duties under Civil Code section 43.92, which requires psychotherapists to make reasonable efforts to warn when a patient has communicated an actual threat of physical harm against an identifiable victim. Rosen asserted a trier of fact could reasonably conclude that the "cumulative effect of Thompson's statements" constituted an actual threat of violence against her and every other student who was in Thompson's classes. In support, Rosen cited statements Thompson had made to UCLA personnel describing the anger he felt toward students who were harassing him and his willingness to escalate the matter if UCLA did not discipline the responsible parties.
Rosen also argued there were disputed issues of material fact whether UCLA had breached the duties it owed to its students. In support, Rosen relied on two expert declarations concluding that UCLA had failed to follow its "own policies and procedures and the standard applicable to all universities" regarding student safety. Rosen's experts asserted that UCLA should have conducted a formal threat assessment on Thompson and forced him to participate in "meaningful psychiatric evaluation and treatment" as a condition of his continued attendance at the school.
Finally, Rosen argued that Government Code sections 820.2 and 856 were inapplicable to her claims because both statutes only immunized a public entity's "`basic policy decisions,'" not the manner in which those policy decisions were implemented. Rosen asserted she was not challenging UCLA's existing policies regarding student safety and the treatment of mentally ill students, but rather the manner in which UCLA's employees had "implement[ed]" those policies in Thompson's case.
The trial court denied the motion for summary judgment, concluding that UCLA "had a duty to warn [Rosen] and/or take reasonable steps to prevent the threat [Thompson] posed to [her]." The court listed three sources of law that imposed a duty on UCLA to protect Rosen from foreseeable third party misconduct. First, the court found that a "special relationship existed" between the parties based on Rosen's "status as a student." Second, the court found Rosen qualified as a "business invitee," explaining that landowners must generally "protect ... [their] invitee[s] from foreseeable third party criminal acts." Third, the court concluded UCLA "may have voluntarily assumed the duty" to protect Rosen by "overseeing [Thompson's] psychological treatment" and attempting to "accommodate his disability."
The court also found that the parties' conflicting expert declarations raised triable issues of fact whether UCLA had "breached its duty when it failed to inform [Rosen] that Thompson had identified her as a target of his anger and/or failed to place her into a different lab." The court also ruled, without further explanation, that "the immunity statutes do not apply here."
UCLA filed a petition for writ of mandate seeking an order "directing respondent superior court to enter summary judgment" in its favor. We issued an order to show cause.
"An order denying a motion for summary judgment may be reviewed by way of a petition for writ of mandamus. (Code Civ. Proc., § 437c, subd. (m)(1); [citation].)" (Lefiell Manufacturing Co. v. Superior Court (2014) 228 Cal.App.4th 883, 891 [175 Cal.Rptr.3d 894].) "A writ of mandamus will issue when the denial of a motion for summary judgment results in a trial on a nonactionable claim." (Ibid.)
"`A defendant moving for summary judgment has the burden of producing evidence showing that one or more elements of the plaintiff's cause of action cannot be established, or that there is a complete defense to that cause of action. [Citations.]'" (Hypertouch, Inc. v. ValueClick, Inc. (2011) 192 Cal.App.4th 805, 817 [123 Cal.Rptr.3d 8].) "`Once the [movant] has met that burden, the burden shifts to the [other party] to show that a triable issue of one or more material facts exists as to that cause of action....' [Citations.] The party opposing summary judgment `may not rely upon the mere allegations or denials of its pleadings,' but rather `shall set forth the specific facts
"We review an order granting or denying summary adjudication de novo. [Citation.] In our review, we `liberally constru[e] the evidence in support of the party opposing summary judgment and resolv[e] doubts concerning the evidence in favor of that party. [Citation.]' [Citation.]" (City of Pasadena v. Superior Court (2014) 228 Cal.App.4th 1228, 1233 [176 Cal.Rptr.3d 422].)
In her response to our order to show cause, Rosen presents six theories why UCLA owed a legal duty to protect her from Thompson's allegedly foreseeable misconduct: (1) Rosen's status as a matriculated student established a special relationship with UCLA giving rise to a duty to protect; (2) as a property owner, UCLA owed a duty to protect its "business invitees" from foreseeable criminal activity that might occur on its campus; (3) under the "negligent undertaking" doctrine, UCLA's decision to adopt violence prevention protocols and provide student mental health counseling gave rise to a duty to protect; (4) Civil Code section 43.92 imposed a statutory duty on UCLA psychologist Nicole Green to warn Rosen that Thompson had made a serious threat of physical harm against her; (5) by paying tuition fees, Rosen entered into a contractual relationship with UCLA that created a duty to protect; and (6) UCLA had a duty to protect its students from campus violence based on labor statutes that require employers to provide a safe workplace.
For example, in Crow v. State of California (1990) 222 Cal.App.3d 192 [271 Cal.Rptr. 349] (Crow), a student filed a negligence claim against a state university after being assaulted by another student inside a school dormitory. The plaintiff's complaint alleged that the school "knew of the vicious and dangerous propensities of [the attacker]," who had previously assaulted a residence hall advisor. (Id. at p. 197.) The complaint further alleged that, despite such knowledge, the university had "refused and neglected to take any action to prevent [the assailant] from continuing in his vicious and dangerous propensities and to prevent the attack, assault and battery on plaintiff." (Ibid.) The defendants moved for summary judgment, arguing that they had "no duty to control the acts of adult students." (Id. at p. 198.) The plaintiff, however, "contended ... that his affiliation with the university as a student created ... a special relationship" giving rise to "an affirmative duty to protect him" from the foreseeable "criminal acts of a third party." (Id. at pp. 208, 207.) In support, the plaintiff cited prior case law holding that secondary schools "ha[ve] a duty to protect ... student[s]" from foreseeable attacks by third parties. (Id. at p. 208.)
The appellate court concluded that the university had no duty to protect the plaintiff, explaining that there is a "distinction between young, immature schoolchildren in grammar and high schools on the one hand and adult students in colleges and universities on the other." (Crow, supra, 222 Cal.App.3d at p. 209.) Unlike high school students, who are required to attend class and remain under the "direct[] ... charge" of school officials (id. at p. 208), adult college students attend voluntarily and "`regulate their own lives'" (id. at p. 209). The appellate court reasoned that imposing a duty on colleges and universities to protect their students from third party criminal conduct would require a level of supervision and regulation that was incompatible with the "realities of modern college life" and the "`goal[s] of postsecondary education.'" (Ibid.)
Subsequent decisions have adopted Crow's reasoning, concluding that a student's attendance at a university is not, standing alone, sufficient to create a special relationship giving rise to a duty to protect. In Tanja H. v. Regents of the University of California (1991) 228 Cal.App.3d 434 [278 Cal.Rptr. 918] (Tanja H.), a student filed tort claims against the Regents of the University of
Finally, in Ochoa v. California State University (1999) 72 Cal.App.4th 1300 [85 Cal.Rptr.2d 768] (Ochoa), disapproved of on other grounds in Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 160, fn. 5 [41 Cal.Rptr.3d 299, 131 P.3d 383] (Avila), a student filed a negligence claim against his university after being struck by an opposing player during an intramural soccer game. The appellate court concluded that the plaintiff's status as a student "did not create a special relationship imposing a duty of care on [the university]. Unlike high school students, whose attendance is compelled and over whom school officials have direct responsibility while the students are at school, adult college students attend school and participate in school activities voluntarily. [Citation.] Furthermore, since college administrators have abandoned in loco parentis supervision of adult students and have recognized the students' rights to control and regulate their own lives, colleges and universities may no longer be charged with a general duty of care to supervise student activities." (Ochoa, supra, 72 Cal.App.4th at p. 1305.) Other cases are in accord. (See Stockinger v. Feather River Community College (2003) 111 Cal.App.4th 1014, 1029 [4 Cal.Rptr.3d 385] ["case law recognizes that the presumed maturity of college students warrants different treatment in terms of duty of supervision"]; Baldwin v. Zoradi (1981) 123 Cal.App.3d 275, 287-291 [176 Cal.Rptr. 809].)
Despite the holdings in Crow, Tanja H., and Ochoa, Rosen contends that at least two other decisions — Avila, supra, 38 Cal.4th 148 and Patterson v. Sacramento City Unified School Dist. (2007) 155 Cal.App.4th 821 [66 Cal.Rptr.3d 337] (Patterson) — have recognized that colleges and universities owe a "duty to supervise their adult students." Rosen argues that the supervisory duties described in these cases necessarily extend to protecting students in the classroom. Avila and Patterson, however, addressed substantially different circumstances. Moreover, both decisions included language acknowledging that colleges and universities generally owe no duty of care to protect students from third party misconduct.
In Avila, supra, 38 Cal.4th 148, the plaintiff was struck in the head with a pitch during an intercollegiate baseball game. The plaintiff alleged that the pitcher, who played for the home team, had intentionally thrown the ball toward his head. The plaintiff filed a negligence complaint alleging that the host school had failed to provide visiting opponents with proper medical care and failed to supervise and control its student-athlete. The college demurred, contending it had no duty of care to protect the plaintiff from the perpetrator's intentional, wrongful conduct.
In its analysis, the Supreme Court explained that prior decisions had established elementary and secondary schools "have a duty to supervise students [citations], a duty that extends to athletic practice and play [citation]." (Avila, supra, 38 Cal.4th at p. 158.) Citing Crow, the Court noted that
There is no language in Avila supporting Rosen's contention that colleges and universities owe a "supervisory" duty to protect students from third party misconduct that occurs within the classroom. Avila repeatedly explained that the supervisory duties at issue in that case related to athletes participating in intercollegiate athletics, which the Court specifically described as an "exception" to the general rule that colleges and universities have no duty to protect their students. (Avila, supra, 38 Cal.4th at p. 163.) Moreover, the court repeatedly cited with approval Crow and other cases holding that the relationship between a college and its students does not give rise to a duty to protect from wrongful third party conduct.
Patterson, supra, 155 Cal.App.4th 821, has even less relevance to the issues presented in this case. The plaintiff in Patterson was a student in an adult truck driver training course. As part of the course curriculum, the students were required to load bleachers onto a flatbed truck. An instructor supervised the students while they loaded a set of lightweight, aluminum bleachers onto the truck. The instructor then sent the students to another location to load a second set of heavier wooden bleachers without supervision. While loading the wooden bleachers, the plaintiff fell off the flatbed truck and was injured. The plaintiff filed a negligence claim alleging the school district had breached its duty to properly supervise the students during their class-related activities.
In assessing whether the school owed a duty to supervise, the court observed that Crow, Ochoa and other cases had "specifically found" that a "plaintiff's affiliation with the university as a student" did not create a special relationship giving rise to a duty to protect from third party criminal conduct. (Patterson, supra, 155 Cal.App.4th at p. 831.) The court concluded, however, that those decisions did "not hold that school or community college districts never owe a duty of care to their adult students." (Id. at p. 832.) The court
Rosen next contends that UCLA owed a duty to protect her from foreseeable criminal conduct based on her status as a "business invitee" onto campus property. (See Donnell v. California Western School of Law (1988) 200 Cal.App.3d 715, 719 [246 Cal.Rptr. 199] (Donnell) ["Mature students are generally considered business invitees."]; see also Stockwell v. Board of Trustees (1944) 64 Cal.App.2d 197, 203 [148 P.2d 405] (Stockwell) [treating adult student as "a person invited upon the premises"].) As set forth in her trial court brief, Rosen argues that Civil Code section 1714 imposes a duty on every landowner to "take affirmative action to control the wrongful acts of third persons which threaten invitees where the occupant has reasonable cause to anticipate such acts and the probability of injury resulting therefrom." (Taylor v. Centennial Bowl, Inc. (1966) 65 Cal.2d 114, 121 [52 Cal.Rptr. 561, 416 P.2d 793]; see Ann M., supra, 6 Cal.4th at p. 674; Kentucky Fried Chicken of Cal., Inc. v. Superior Court (1997) 14 Cal.4th 814, 823-824 [59 Cal.Rptr.2d 756, 927 P.2d 1260] (Kentucky Fried Chicken) ["A land occupier `must act as a reasonable person to avoid harm from the negligence of ... persons who have entered [onto the land], and even from intentional attacks on the part of such third persons. He is required to take action when he has reason to believe, from what he has observed or from past experience,
The county demurred, arguing that Government Code section 835 limited their premises liability to injuries caused by physical defects on the property. The trial court sustained the demurrer without leave to amend. The appellate court reversed, but was itself reversed by the Supreme Court, which concluded that Government Code section 835, rather than Civil Code section 1714, controls "the liability of public entities as property owners." (Zelig, supra, 27 Cal.4th at p. 1132.)
The court explained that under section 835, a public entity may only be held liable for injuries that arise from a "`dangerous condition'" (Zelig, supra, 27 Cal.4th at p. 1134), which refers to a physical "defect in the property itself" (id. at p. 1135). The court further explained that "`third party conduct by itself, unrelated to the condition of the property, does not constitute a "dangerous condition" for which a public entity may be held liable.' [Citation.]" (Id. at p. 1134.) Although a public entity "may be liable if it `maintained the property in such a way so as to increase the risk of criminal activity' or in such a way as to `create[] a reasonably foreseeable risk of ... criminal conduct'" (id. at pp. 1134-1135), liability will not attach unless "the defect in the physical condition of the property [has] some causal relationship to the third party conduct that actually injures the plaintiff" (id. at p. 1136, italics omitted).
The court specifically rejected the appellate court's conclusion that "the liability of the public entities could be based on the general negligence principles of Civil Code section 1714, which apply to and govern the potential liability of private property owners." (Zelig, supra, 27 Cal.4th at pp. 1131-1132.) According to the court, "[i]n structuring Government Code
Under Zelig, a public college or university may not be held liable as a property owner for injuries caused by third party criminal conduct that is unrelated to any physical condition on the property. Rosen concedes that she does not allege any physical condition on the property contributed to Thompson's actions or to her injuries. Instead, Rosen is asserting only that UCLA had a duty to protect her from foreseeable criminal conduct based solely on its status as the "possessor of land" on which the crime occurred. Government Code section 835 precludes that claim.
Rosen next argues that the trial court properly concluded there are disputed issues of material fact whether UCLA owed a duty to protect her from Thompson's criminal acts under the "negligent undertaking doctrine," which has been characterized as an "exception to the no-duty-to-protect rule." (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 235, fn. 13 [30 Cal.Rptr.3d 145, 113 P.3d 1159] (Delgado).) As "reflected in Restatement Second of Torts, section[] 323" (id. at p. 249, fn. 28), the doctrine provides that "a volunteer who, having no initial duty to do so, undertakes to provide protective services to another, will be found to have a duty to exercise due care in the performance of that undertaking if one of two conditions is met: either (a) the volunteer's failure to exercise such care increases the risk of harm to the other person, or (b) the other person reasonably relies upon the volunteer's undertaking and suffers injury as a result." (Id. at p. 249.) Rosen asserts the doctrine applies here because the evidence shows UCLA adopted various protocols and policies that were intended to address "campus threats of violence ..., particularly those driven by mental health issues." In support, she cites materials describing UCLA's violence prevention policies and its overall commitment to campus safety.
Even assuming Rosen could establish that UCLA did undertake to protect its students from potentially violent students and that it performed this task in a negligent manner, Rosen's claim fails. To prevail under the negligent undertaking doctrine, Rosen must additionally prove one of the following conditions: (1) that UCLA's actions increased her risk of physical harm or (2) that she relied on UCLA's undertaking and suffered injury as a result. (See Paz v. State of California (2000) 22 Cal.4th 550, 560 [93 Cal.Rptr.2d 703, 994 P.2d 975] (Paz) ["[T]he negligent undertaking theory of liability requires more than simply establishing defendants' undertaking to another.... [L]iability depends on [proving one of the additional conditions set forth in the Restatement.]"]; Delgado, supra, 36 Cal.4th at p. 249 [defendant who undertakes to provide protective services to another has a duty "if one of [the] two [additional] conditions is met"].) Rosen has produced no evidence that she can prove either condition.
Similarly, in Santee, supra, 211 Cal.App.3d 1006, the plaintiff alleged that the defendant had voluntarily undertaken a duty to report streetlight outages and then negligently performed its duty by failing to report an outage that resulted in the plaintiff's injury. The court concluded the plaintiff had failed to satisfy the "increased risk" element, explaining that "the failure to report the light outage did not increase the risk posed by an inoperative light; instead, the risk posed by the inoperative light remained unaltered. The failure to report the outage only failed to decrease the risk.... [¶] ... [N]onfeasance which results in failure to eliminate a preexisting risk is not equivalent to nonfeasance which increases a risk of harm." (Id. at pp. 1015-1016, italics omitted.)
As in Paz and Santee, Rosen has provided no evidence that UCLA's actions increased the risk of harm that Thompson posed to her beyond that which existed before the school had taken any action to address his mental condition. Instead, she contends only that UCLA failed to alleviate the "preexisting risk" Thompson posed to her and other students. (Santee, supra, 211 Cal.App.3d at p. 1016.) She does not allege, for example, that UCLA's actions exacerbated Thompson's condition, thereby making him more dangerous to the community than he would have been in the absence of any such action. For the purposes of the negligent undertaking doctrine, UCLA's alleged failure to neutralize the risk that Thompson posed to her is not sufficient to demonstrate an "increased risk of harm."
Rosen has also failed to provide any evidence that she was harmed because she detrimentally relied on UCLA's student safety measures. (See Paz, supra,
Rosen also argues there is a disputed issue of material fact whether Nicole Green, a UCLA psychologist who provided treatment to Thompson, had a statutory duty to warn under Civil Code section 43.92. Former subdivision (a) of section 43.92 stated: "There shall be no monetary liability on the part of, and no cause of action shall arise against, any ... psychotherapist ... in failing to warn of and protect from a patient's threatened violent behavior.... except where the patient has communicated to the psychotherapist a serious threat of physical violence against a reasonably identifiable victim or victims." Thus, under section 43.92, a psychotherapist may be held liable "`"for failure to warn [only] ... where the patient has communicated an `actual threat of violence against an identified victim....'"' [Citation.]" (Calderon v. Glick (2005) 131 Cal.App.4th 224, 231 [31 Cal.Rptr.3d 707] (Calderon).)
To establish a triable issue of material fact whether Green violated her duties under Civil Code section 43.92, Rosen was required to produce evidence that would "allow a reasonable trier of fact to find that [Thompson] had `communicated' to [Green] `a serious threat of physical violence' against [Rosen]." (Calderon, supra, 131 Cal.App.4th at p. 232.) The record contains no such evidence. Rather, the record indicates that during his sessions with Green, Thompson consistently told her he did not intend to harm anyone and never made any reference to Rosen. At Thompson's initial intake interview, held March 11, 2009, Thompson told Green he had never considered, and was not currently considering, harming another person. He also denied having any intent to harm the individuals he believed were harassing him. At a follow-up meeting the next day, Thompson stated he did not have any intent to harm others and denied experiencing any homicidal ideation.
In her response to our order to show cause, Rosen argues for the first time that "two additional bases exist to support the trial court's ruling that UCLA owed [her a duty to protect]." First, Rosen contends that "`[b]y the act of matriculation, together with the payment of required fees,'" she entered into an "implied-in-fact" contract with UCLA that created "a special relationship of the type that gave rise to a duty [to protect]" her from foreseeable criminal conduct. Second, Rosen argues UCLA had a duty to protect her based on labor statutes that require employers to address threats of violence in the workplace. (See generally Franklin v. Monadnock Co. (2007) 151 Cal.App.4th 252, 259-260 [59 Cal.Rptr.3d 692] ["Labor Code section
Rosen did not raise either of these legal theories in her complaint or in her opposition to UCLA's motion for summary judgment. Under the "principles of `theory of the trial'" (North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 29 [21 Cal.Rptr.2d 104]), the failure to raise a legal theory in the trial court proceedings ordinarily constitutes a forfeiture of the issue on appeal: "`[A] party is not permitted to change his position and adopt a new and different theory on appeal. To permit him to do so would ... be ... manifestly unjust to the opposing party.' [Citation.] The[s]e principles... apply to motions [citation], including summary judgment motions. [Citation.]" (ibid.; see Ernst v. Searle (1933) 218 Cal. 233, 240-241 [22 P.2d 715]; Webster v. Southern Cal. First Nat. Bank (1977) 68 Cal.App.3d 407, 416-417 [137 Cal.Rptr. 293] ["A party may not present his case at the trial court on one theory and then urge a completely different theory on appeal."]). Rosen's trial court opposition identified and analyzed five distinct legal theories that allegedly established UCLA's duty to protect. None of those theories referenced Rosen's contractual relationship with the university or statutes governing workplace safety.
Even if Rosen had presented these theories below, they both fail on their merits. Rosen's first theory — that UCLA owed her a duty to protect based on an implied-in-fact contract between them — relies on two lines of cases. The first set of cases holds that "a special relationship of the type that gives rise to a duty to take affirmative action to protect another may be created by contract." (Suarez v. Pacific Northstar Mechanical, Inc. (2009) 180 Cal.App.4th 430, 438 [103 Cal.Rptr.3d 168].) Thus, for example, a company that contracts to provide security services has an affirmative duty to protect
Rosen has also failed to establish there is a triable issue of fact whether UCLA owed a duty to protect based on statutes requiring employers to address credible threats of violence in the workplace. (See Franklin, supra, 151 Cal.App.4th at p. 259 ["Labor Code section 6400 et seq. and Code of Civil Procedure section 527.8 ... require[] ... that an employer take reasonable steps to address credible threats of violence in the workplace."].) Rosen has produced no evidence she was an employee of UCLA, nor has she provided any authority that the workplace statutes she cites extend to college students who are not otherwise employed by their school.
The petition is granted. Defendants shall recover their costs on their petition.
Strobel, J.,
PERLUSS, P. J., Dissenting. —
"Welcome to one of the most secure campuses in the country" proclaims the brochure entitled "The Necessities for Bruin Families," addressed to parents who are thinking about sending their children to UCLA (University of California at Los Angeles). Other promotional materials assure prospective students and their families that "UCLA is committed to maintaining a safe and respectful learning environment and takes an unwavering stand against any act that violates the True Bruin values." To the same effect, the January 2008 Report of the University of California Campus Security Task Force declared in its opening line, "There is no greater priority for the University of California system than the safety and security of students, faculty, staff, and visitors." That same report concluded by observing, "[w]hile no campus can be immune from the threats of violence that exist in larger society, the University should do everything feasible to create safe and secure campuses."
The Regents of the University of California are not alone in announcing campus safety as one of their primary responsibilities. Throughout the country, professional organizations attempting to identify best practices for preventing and responding to campus violence have recognized, although the statistical risk of serious violence on campus may be low, the potential consequences can be devastating and long-lasting. (See, e.g., Campus Violence Prevention and Response: Best Practices for Massachusetts Higher Education, Report to Massachusetts Department of Higher Education (2008) <http://www.mass.edu/library/reports/campusviolencepreventionandresponse.pdf> [as of Oct. 7, 2015].) Accordingly, these professionals advise, "Colleges must respond proactively to the risk, as parents rightly expect a special level of care for their sons and daughters while they are away at school. Thus, it is prudent and imperative that colleges take reasonable steps to ensure the safety of students as well as faculty and other employees." (Ibid.)
Are these sentiments simply aspirational or is the relationship between UCLA — or any other college or university — and its students sufficiently "special" that the school and its personnel have an affirmative duty to adopt reasonable procedures to protect their students from foreseeable injury at the
The threshold element of a cause of action for negligence is whether the defendant owed a duty of care to the plaintiff. (See Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 614 [76 Cal.Rptr.2d 479, 957 P.2d 1313].)
Whether a duty of care exists in a particular case is a question of law decided by the court. (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 237-238 [30 Cal.Rptr.3d 145, 113 P.3d 1159] (Delgado); Morris v. De La Torre (2005) 36 Cal.4th 260, 264 [30 Cal.Rptr.3d 173, 113 P.3d 1182].) That question, however, must be evaluated at a relatively broad level of factual generality to "preserve the crucial distinction between a determination that the defendant owed the plaintiff no duty of ordinary care, which is for the
The issue of duty, moreover, is essentially one of public policy: "`A judicial conclusion that a duty is present or absent is merely "`a shorthand statement ... rather than an aid to analysis.... "[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 the particular plaintiff is entitled to protection.'"'" (Beacon Residential Community Assn. v. Skidmore, Owings & Merrill LLP (2014) 59 Cal.4th 568, 573 [173 Cal.Rptr.3d 752, 327 P.3d 850], quoting Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 397 [11 Cal.Rptr.2d 51, 834 P.2d 745]; accord, Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 160 [41 Cal.Rptr.3d 299, 131 P.3d 383] (Avila).) "[L]egal duties are not discoverable facts of nature, but merely conclusory expressions that, in cases of a particular type, liability should be imposed for damage done." (Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 434 [131 Cal.Rptr. 14, 551 P.2d 334].)
As a general matter, there is no duty to come to the aid of another (Williams v. State of California (1983) 34 Cal.3d 18, 23 [192 Cal.Rptr. 233, 664 P.2d 137]), to protect others from criminal conduct of third parties (Delgado, supra, 36 Cal.4th at p. 235) or to warn those endangered by such conduct (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1129 [119 Cal.Rptr.2d 709, 45 P.3d 1171]). A duty to control the conduct of another or to protect or warn persons endangered by such conduct may arise, however, if a "special relationship" exists between the defendant and either the person in need of aid or the third party actor: "A person who has not created a peril is not liable in tort merely for failure to take affirmative action to assist or protect another unless there is some relationship between them which gives rise to a duty to act." (Williams, at p. 23.) "Such a duty may arise if `"(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or (b) a special relation exists between the actor and the other which gives the other a right to protection."' [Citations.] `"This rule derives from the common law's distinction between misfeasance and nonfeasance, and its reluctance to impose
"[S]ome relationships by their very nature are `special' ones giving rise to an `initial duty' to come to the aid of others, regardless of whether there has been detrimental reliance in a particular case. The relationship between a common carrier and its passengers is just such a special relationship, as is the relationship between an innkeeper and his or her guests, between a possessor of land and those who enter in response to the landowner's invitation and between a psychiatrist and his or her patients." (Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 789 [221 Cal.Rptr. 840, 710 P.2d 907].) Like the concept of duty itself, however, the term "special relationship" has no independent significance: "It merely signifies that courts recognize an affirmative duty arising out of the relationship where otherwise no duty would exist [to take affirmative action with respect to a risk not created by the actor]. Whether a relationship is deemed special is a conclusion based on reasons of principle or policy." (Rest.3d Torts, Liability for Physical and Emotional Harm, § 40, com. h, p. 42; see Rest.2d Torts, § 314A, com. b, p. 119 [affirmative duty to aid or protect often based on finding a "relation of dependence or of mutual dependence"].)
In C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 870 [138 Cal.Rptr.3d 1, 270 P.3d 699], the Supreme Court held a school district and its employees have a special relationship with the district's pupils that "impos[es] obligations beyond what each person generally owes others under Civil Code section 1714 ... [.] [T]he duty of care owed by school personnel includes the duty to use reasonable measures to protect students from foreseeable injury at the hands of third parties acting negligently or intentionally." That special relationship and the concomitant protective duty, moreover, do not apply only to instructional personnel directly supervising the student but extend generally to all the district's supervisory employees "to the extent their duties include overseeing the educational environment." (Id. at p. 871.)
What distinguishes this aspect of C.A. v. William S. Hart Union High School Dist., supra, 53 Cal.4th 861, from the case at bar, of course, is that it involved a question of liability for injuries to a high school student, not a college undergraduate, and the Supreme Court, citing cases such as Hoff v.
Reflecting the social and moral conventions of the Vietnam War era and the attendant demise of college administrators' in loco parentis responsibilities, several Court of Appeal decisions — discussed in the majority opinion — have held colleges and universities owe no similar affirmative duty to ensure the welfare of their students. For example, in Baldwin v. Zoradi (1981) 123 Cal.App.3d 275 [176 Cal.Rptr. 809] the court affirmed an order of dismissal after the trial court had sustained a demurrer to a college student's complaint that her injury as a passenger in a car involved in an off-campus speed contest was the result of the negligent failure of university personnel to prevent unauthorized drinking in the driver's campus dormitory. The court explained, "Since the turbulent '60's, California colleges and universities have been in the forefront of extension of student rights with a concomitant withering of faculty and administrative omnipotence." (Id. at p. 288.) "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. Although the alleged lack of supervision had a disastrous result to this plaintiff, the overall policy of stimulating student growth is in the public interest." (Id. at p. 291.)
Similarly, in Crow v. State of California (1990) 222 Cal.App.3d 192 [271 Cal.Rptr. 349], the Court of Appeal affirmed a judgment for the university defendants in an action by a student assaulted by another student (the starting nose tackle on the university's football team) during a late night keg party at an on-campus dormitory. The court held the injured student's "claim of a university/student special relationship must fail under the facts of this case." (Id. at p. 208.) Emphasizing the "distinction between young, immature schoolchildren in grammar and high schools on the one hand and adult students in colleges and universities on the other," the Crow court reasoned (while quoting from Baldwin v. Zoradi, supra, 123 Cal.App.3d at p. 287), "`"At one time, exercising their rights and duties in loco parentis, colleges were able to impose strict regulations. But today students vigorously claim the right to define and regulate their own lives."' [Citation.] Given these realities of modern college life, the university does not undertake a duty of care to safeguard its student[s] from the risks of harm flowing from the use of alcoholic beverages." (Crow, at p. 209.)
Tanja H. v. Regents of University of California (1991) 228 Cal.App.3d 434 [278 Cal.Rptr. 918] (Tanja H.) is yet another tragic case of a vicious assault
The Supreme Court recognized this case law in Avila, supra, 38 Cal.4th at page 158, explaining that colleges and universities do not owe "broad duties of supervision to all their students" to the same extent as public schools owe to elementary, middle and high school students. Nonetheless, the absence of such a generalized affirmative duty to protect college students against third party misconduct in all circumstances, comparable to a public school's duty to its students, did not deter the Supreme Court from recognizing a special relationship between a host college and its own and visiting players in school-supervised intercollegiate athletic events that does not differ in kind from the scope of the duty owed to high school athletes — a duty, shaped by the primary-assumption-of-the-risk doctrine, "to, at a minimum, not increase the risks inherent in the sport." (Id. at pp. 162-163.) The Avila Court held, "Separate and apart from the body of law governing premises liability claims, another body of law establishes that public schools and universities owe certain non-property-based duties to their students. Public schools have a duty to supervise students [citations], a duty that extends to athletic practice and play [citation]. Although with the demise of the in loco parentis doctrine, colleges and universities do not owe similarly broad duties of supervision to all their students [citations], that development has not limited the recognition that colleges and universities owe special duties to their athletes when conducting athletic practices and games." (Id. at p. 158.)
The existence of such a protective duty in the classroom setting, moreover, is supported by California's fundamental public policy, which guarantees students and staff at every level of public and private school the right to their physical safety: "[T]he People find and declare that the right to public safety extends to public and private primary, elementary, junior high, and senior high school, and community college, California State University, University of California, and private college and university campuses, where students and staff have the right to be safe and secure in their persons." (Cal. Const., art. I, § 28, subd. (a)(7); cf. C.A. v. William S. Hart Union High School Dist., supra, 53 Cal.4th at p. 870, fn. 3.)
That the issue of a college or university's affirmative duties to its students is more nuanced than the all-or-nothing approach suggested by the courts in Tanja H. and Ochoa is reflected not only in the holding of Avila but also in the treatment of the issue in the Restatement Third of Torts, Liability for
This affirmative duty, recognized by the Restatement Third of Torts, finds expression in a number of decisions from jurisdictions outside California. (See, e.g., Boisson v. Arizona Bd. of Regents (2015) 236 Ariz. 619, 623 [343 P.3d 931, 935] ["Arizona case law ... indicates a college or university does owe its students a duty of reasonable care for on-campus activities."]; Mullins v. Pine Manor College (1983) 389 Mass. 47, 51-52 [449 N.E.2d 331, 335-336] [college owes a duty to its students to take reasonable steps to protect them from foreseeable criminal acts; "[t]he fact that a college need not police the morals of its resident students, however, does not entitle it to abandon any effort to ensure their physical safety"]; cf. Nero v. Kansas State University (1993) 584 Kan. 567, 584 [861 P.2d 768, 780] ["a university has a duty of reasonable care to protect a student against certain dangers, including criminal actions against a student by another student or a third party if the criminal act is reasonably foreseeable and within the university's control"].)
Recognizing the legal duty of a college or university to adopt a reasonable program to protect students in the classroom by identifying and responding to foreseeable threats of campus violence — one that gives appropriate weight to the requirements of federal and state privacy and antidiscrimination laws
The Regents' amici curiae confirm the University of California's actions in this regard are not unusual, particularly in the post-Virginia Tech shooting era: Even without a duty, colleges and universities throughout the country "have voluntarily put in place proactive and effective measures" to reduce the
Public entities are generally not liable for injuries they cause, either by act or omission. (Gov. Code, § 815; see Guzman v. County of Monterey (2009) 46 Cal.4th 887, 897 [95 Cal.Rptr.3d 183, 209 P.3d 89].)
Katherine Rosen's negligence claim against the Regents is based on one such exception to the general no-liability rule, Government Code section 815.2, subdivision (a), which imposes vicarious liability on a public entity for its employees' wrongful conduct: "A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative." Rosen alleges, and in opposition to the motion for summary judgment presented supporting evidence, that the university employees she has named as defendants, Professor Alfred Bacher, associate dean Cary Porter, dean Robert Naples and Dr. Nicole Green, as well as other
In its petition for a writ of mandate, the Regents argue the superior court erred in finding "the immunity statutes do not apply here" and failing to award the UCLA defendants summary judgment on immunity grounds, identifying as the basis for this defense Government Code sections 856 and 820.2, as well as Civil Code section 43.92. While these three provisions shield certain aspects of this tragic situation from liability, they do not, either singly or in combination, justify denying Rosen the right to present her negligence claim to a jury.
Government Code section 856, subdivision (a), immunizes the decision reached by UCLA personnel not to seek to involuntarily confine Damon Thompson: "Neither a public entity nor a public employee acting within the scope of his employment is liable for any injury resulting from determining in accordance with any applicable enactment: [¶] (1) Whether to confine a person for mental illness or addiction." Rosen, however, does not challenge that determination, arguing her lawsuit focuses on "careless or wrongful behavior subsequent to a decision respecting confinement," which would not be conduct protected by Government Code section 856. (See Tarasoff v. Regents of University of California, supra, 17 Cal.3d at p. 449.) The failure of the consulting and response team to refer Thompson's case to the violence prevention and response team or to employ many of the other intervention techniques available to it constituted actions outside the scope of this immunity provision.
Civil Code section 43.92 is not an immunity statute. Rather, it limits the liability of a therapist (here, Dr. Green) for failing to protect from a patient's threatened violent behavior to those situations in which "the patient has
Government Code section 820.2 states, "[e]xcept as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused." Government Code section 815.2, subdivision (b), extends that discretionary act immunity to the public entity whose employee's conduct is at issue, "Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability." These statutes provide immunity for "basic policy decisions" by government officials, but not "for the ministerial implementation of that basic policy." (Johnson v. State of California (1968) 69 Cal.2d 782, 796 [73 Cal.Rptr. 240, 447 P.2d 352].)
The Supreme Court in Barner, supra, 24 Cal.4th 676 discussed in detail the difference between planning/discretionary and operational/ministerial activities in a professional setting — an analysis that guides the application of Government Code section 820.2 immunity in this case. The issue in Barner was whether the immunity for discretionary acts applied to a deputy public defender's representation of a defendant in a criminal action. (Barner, at p. 679.) The court held the acts or omissions of a public lawyer, even though they result from professional judgments, do not involve the type of basic policy decisions that are insulated from liability pursuant to Government Code section 820.2. (Barner, at p. 680.) It explained, "[A] public employee's initial decision whether to provide professional services to an individual might involve the exercise of discretion pursuant to section 820.2," but, "once the employee undertakes to render such services, he or she is not immune for the negligent performance of professional duties that do not amount to policy or planning decisions." (Id. at p. 686.)
The Barner court recognized that deputy public defenders "must exercise considerable judgment in making decisions regarding the type and extent of services necessary to discharge his or her duty of care to clients" (Barner, supra, 24 Cal.4th at p. 688) and that "the actual performance of such services ordinarily requires a high level of skill and often involves many choices
A public university's decisions to create interdisciplinary behavioral risk assessment protocols and to include specific procedures to identify and respond to threats of campus violence in its programs are unquestionably policy or planning determinations and thus "discretionary" as that term was defined in Johnson v. State of California, supra, 69 Cal.2d 782 and Barner, supra, 24 Cal.4th 676. By contrast, the actual execution of those programs by university employees with respect to individual students who have been identified as at risk — here, the actions and, more importantly, omissions that Rosen has alleged culminated in her being attacked by Thompson during their classroom laboratory — constitute "subsequent ministerial actions in the implementation of that basic decision" to adopt measures to maintain a safe campus. In sum, even though the UCLA officials involved may have exercised highly skilled, professional judgment in making choices among complex alternatives in their responses to the situation presented by Thompson, Government Code section 820.2 does not bar Rosen's negligence claim.
As an alternative basis for establishing UCLA's affirmative duty to protect her from foreseeable criminal conduct, Rosen focuses on her status as a business invitee on campus property rather than as a student attending class. As Rosen argues, the common law recognizes a special relationship exists between a possessor of land and those who enter in response to the landowner's invitation. That special relationship imposes an affirmative duty on the landowner to take reasonable steps to protect against foreseeable criminal acts of third parties that are likely to occur in the absence of such precautionary measures. (Delgado, supra, 36 Cal.4th at p. 235; Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674 [25 Cal.Rptr.2d 137, 863 P.2d 207].) However, the Government Claims Act, through Government Code sections 815 and 835, restricts the liability of a public entity as landowner to situations in which "there is some defect in the property itself
UCLA's immunity from premises liability by virtue of Government Code section 835, however, does not insulate it from liability arising from the special relationship between a university and its students while they are in the classroom and the university's concomitant legal duty to adopt and implement a reasonable program to protect students in that setting from foreseeable threats of violence. As the Supreme Court explained in Avila, the body of law governing the non-property-based duties schools and universities may owe their students based on the special relationship between them is "[s]eparate and apart from the body of law governing premises liability claims...." (Avila, supra, 38 Cal.4th at p. 158.) Thus, the Avila court recognized, while the defendant community college district before it might be protected from a premises liability claim by an immunity statute (there, Gov. Code, § 831.7, rather than Gov. Code, § 835), that immunity provision did not limit the public entity's potential liability arising from other duties, "such as any duty owed to supervise participation in particular activities." (Avila, at pp. 157-158.)
To be sure, as the majority suggests (maj. opn., ante, fn. 7), if the Legislature were to eliminate the statutory restrictions on premises liability mandated for all public entities by Government Code section 835, it might not be necessary to rely on the university-student relationship to impose a duty on the university to adopt and implement a reasonable program to protect its students from foreseeable threats of campus violence. But that hypothetical legislative response does not justify rejecting the discrete special-relationship basis for liability presented by Rosen, nor does it relieve the judicial branch of its responsibility to engage in the reasoned development of the common law. (See generally Tarasoff v. Regents of University of California, supra, 17 Cal.3d at pp. 436-437; Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 813-816 [119 Cal.Rptr. 858, 532 P.2d 1226].)
After overruling objections presented by the parties, the superior court concluded Rosen had presented admissible evidence demonstrating triable issues of material fact existed as to whether UCLA personnel had breached their duty to warn Rosen and/or to take reasonable steps to prevent the threat
I agree with that assessment of the evidence in the record.
The Regents may ultimately persuade the finder of fact their employees were not negligent in treating or handling Thompson or in failing to warn or
For these reasons I would deny the petition except as to Dr. Green and permit Rosen's case to proceed to trial.
We reject Rosen's contention that UCLA had an initial burden to produce evidence demonstrating that she could not prevail on a claim under Civil Code section 43.92. For purposes of summary judgment, a moving defendant must carry its burden as to all theories of liability reflected in the pleadings. (Lopez v. Superior Court (1996) 45 Cal.App.4th 705, 714 [52 Cal.Rptr.2d 821].) Rosen's complaint does not include any reference to Nicole Green or to Civil Code section 43.92. The complaint merely alleges UCLA and its personnel had a "special relationship" with Rosen because they had "invited [her] onto the campus property and ... enrolled her as a student in exchange for the payment of tuition." Rosen first raised the issue of section 43.92 in response to UCLA's motion for summary judgment, asserting that even if she did not share a special relationship with UCLA giving rise to a duty to protect, there was a triable issue of fact whether Green (and therefore UCLA) were nonetheless liable under section 43.92.
