On April 21, Mary-Pat Cormier (Partner, Bowditch & Dewey) and Akiyo Fujii (Associate General Counsel, Tufts University) presented on the topic of college & university liability exposures for off-campus housing at URMIA’s Northeast Regional Conference. Their discussion looked at the bases and evolving theories of liability against colleges & universities for damages arising out of off-campus housing, as well as risk mitigation strategies, including an insurance framework to address the exposures. We’ve received a number of inquiries about the cases that we cited and our presentation, which we wanted to address here. Of course, if you would like more information or a copy of Mary-Pat’s and Akiyo’s presentation, please contact Mary-Pat at firstname.lastname@example.org.
The well-attended URMIA session confirmed that the issue of liability exposures for off-campus housing is a real one for many colleges, universities, their risk managers, and their insurers. This is no surprise: since 2000, the U.S. Fire Administration records 86 percent of campus-related fire fatalities occurred in off-campus housing. Common factors in these fires are: lack of automatic fire sprinklers; missing or disabled smoke alarms; careless disposal of smoking materials; impaired judgment from alcohol consumption; and fires originating on upholstered furniture. Fires are not the only perils that may raise liability concerns: filthy units; pest infestations; electrical problems; illegal bedrooms in basement or attic spaces; inadequate ingress/egress; broken locks; blocked exits; and heating and plumbing issues are all common complaints. Another, rampant overcrowding, is commonplace in the nation’s college neighborhoods.
The evolving case law starts with an analysis of institutions’ duties to students generally with respect to safety and housing. For instance, in the off-campus housing cases we surveyed, many started with Furek v. Univ. of Delaware, 594 A2d 506 (Del 1991) where the university was held liable for fraternity hazing of a resident student at an on campus fraternity: “A University’s duty [to a student] is a limited one, [but] we are not persuaded that none exists.” Liability to students is based generally on two theories: (1) “existing social values” and “customs” – such as protecting resident students against criminal acts of other students and third parties, and (2) that a duty voluntarily assumed must be performed with due care. See Mullins v. Pine Manor, 389 Mass. 47 (Mass 1983).
When it comes to off-campus housing, the analysis of whether a college or university has liability is fact intensive – what is the school’s role in off-campus housing arrangements? Is there a contract, or an assumed duty? What duty is assumed? What is the scope, nature, and goal of the duty? The fact intensive nature of the inquiry means that many cases survive dispositive motions.
In Rogers v. Delaware State Univ., 905 A2d 747 (Del 2006), alleging breach of contract, negligence, gross negligence, and detrimental reliance, a student was assaulted by a boyfriend of another DSU student while sitting in the parking lot of the Dover Inn. The Dover Inn was off-campus housing “offered” by DSU to students who did not get into a DSU residence. The court dismissed the breach of contract claim, because DSU made “no promise of security” at Dover Inn. The court stated, “the duty to exercise reasonable care when one undertakes to provide off-campus housing …. is not a contractual duty.” While there was no contract, there could be no breach of contract; but the court allowed the case to go forward on negligence theories and detrimental reliance because DSU had “assumed” the duty to exercise reasonable care when it undertook to provide off campus housing at the Dover Inn. Questions of fact on causation and foreseeability precluded summary judgment on the negligence claim.
Likewise, in Frank v. Five Towns College, 2014 WL 6836198 (NJ Super Ct App Div, Dec. 5, 2014), a student was injured by a broken window in off-campus housing that the college “arranged.” The court held that the plaintiff relied on the fact that the college owed a duty of care to the student with respect to the arranged off-campus housing: the college had a duty to warn the plaintiff of a defective window in the off-campus housing unit. The court relied on a theory of “assumed duty” that arises when a college undertakes a course of conduct on which a student relies. Moreover, the Court rejected the college’s argument of comparative negligence of student.
Although not an off-campus housing case, McLure v. Fairfield Univ. 2003 WL 21524786 (Superior Court of Connecticut, Judicial District of Waterbury. June 19, 2003), addresses the more general issue of off-campus safety and a university’s “assumed” duties. In McLure, the court held that the university was liable for injuries to a Fairfield student struck off campus by a car driven by an intoxicated student returning from an off-campus party. The court found that it was significant that the defendant university banned drinking on campus, was aware of the off-campus drinking parties in question, and had in fact arranged a shuttle-bus service to get students to and from the off-campus parties during limited hours. By offering the shuttle service, the university had assumed a duty to the student for his safety while traveling between the college and the parties. The court held that university had a duty to protect the students and denied University’s motion for summary judgment.
The cases above all address the issue from the perspective of whether the college or university proactively “assumes” a duty to the student with respect to off-campus activities when it undertakes or “arranges” or “offers” housing or services off-campus. But there are other cases, where courts have seemed willing to “extend” to a college duties related to off campus activity, even where the institution has not “assumed” a duty to students.
In Jaffe v. Falzone, 1993 WL 818606 (Superior Ct of MA, April 5, 1993) the court observed in dicta that a college could have a duty regarding safety and security to a student living off campus. This case was filed by the Jaffes, landlords of off-campus housing near Boston College campus. The Jaffes complained of slander and tortious interference by BC in connection with certain alleged statements by BC representatives about the Jaffes to students and parents. The court dismissed the Jaffes’ case. Citing Mullins v. Pine Manor, supra, the court observed that colleges must use reasonable care to protect resident students from criminal acts of third parties on campus. The court goes further, however, suggesting that the duty in Pine Manor “extends to students who chose to live off campus.” The court seemed willing to extend the duty because BC had following indicia of duties to students residing off campus: (1) an off-campus housing office (“OCHO”); (2) a Community Assistance Patrol interacting between student populations and the communities surrounding BC’s campus; (3) BC police responded to off-campus housing disturbances involving BC students; (4) the BC student guide specifically referred to students’ “responsible citizenship . . . in local neighborhoods.” These factors all led the court to conclude that BC was within its rights to take certain actions with respect to the Jaffes to protect its students living off campus.
NJ Div. of Fire Safety v. Mesivta Keser Torah of Central NJ, 2014 WL 6836198, (NY Super Ct App Div, Dec 5, 2014), involved the liability of a private Hebrew school in New Jersey for state fire laws. In an effort to avoid state fire regulations, imposing automatic fire suppression requirements in student housing, the school tried to spin-off its dorms into a separate entity. The court concluded that the separate ownership was little more than a fiction and found the school liable for fines and penalties related to multiple code violations. The court suggests that a school may be responsible for statutory violations for off-campus housing, especially where there is a “mandate to liberally construe an Act to achieve the goal of fire safety.” Based on this case, a college/university be liable for off-campus housing or fire code violations where there is some affiliation or relationship between the landlord and the college or university and the nature of laws which have been violated or loss – i.e. fire or safety violations.
In short, what we see in these cases is this continuum of liability exposures for off-campus housing for colleges and universities depending on a number of factors: whether the colleges “arranged” for or “offered” off-campus housing, the relationship between the off-campus landlord and the university, who the lease is with, whether the off-campus housing is listed on an OCHO list, whether the off-campus housing is inspected/vetted/rated by the OCHO, etc.
RISK MANAGEMENT & INSURANCE TIPS FOR OFF-CAMPUS HOUSING
A non-exhaustive list of ways to deal with risks inherent in off-campus housing, include:
- Waiver language, assumption of risk, or limitation of liability to gross negligence in written information provided to students by OCHO;
- Remove properties on OCHO list after written complaints – with or without investigation of complaints;
- 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.
If a college or university has potential liability for off-campus housing, it is important to be sure that its liability policies’ contemplate injuries or losses taking place at those off-campus locations. Because most claims are styled as negligence, liability policies would respond to the claims, subject to exclusions, terms & conditions, whereas a breach of contract claim would likely not be covered. Similarly, claims alleging or arising out of code violations may not be covered. If a college or university has reason to know of pre-existing hazardous conditions at in off-campus housing, coverage could be barred. On claims’ made policies, 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 and provided notice to the insurer.
For the college or university that owns off-campus housing, it is important to keep tight control of housing conditions for many reasons, including insurance recovery. As we discussed in this post, off-campus housing is particularly susceptible to “increase in hazard” theories that could limit coverage. Generally, the concept means that where there is an increase in hazard to insured property in the knowledge or control of the insured, coverage will be suspended. If a loss occurs while coverage is suspended, the coverage 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. If a landlord knows that there’s been an increase in occupancy or, basically, any change that affects the safety and security of property can trigger an increase in hazard. And an increase in hazard need not give rise to the loss for the insurer to deny coverage; all that is required for the increase in hazard clause to apply is that there was an “increased hazard by a means within the knowledge and under the control of the insured.”
Of course, as with all insurance issues: the policy’s terms govern, so colleges & universities who think that they may have off-campus housing liability should carefully read their policies to determine the scope of coverage for potential claims.
As Akiyo noted, to unanimous audience agreement, regardless of the legal exposures or liability to colleges for off-campus housing, colleges have an interest – maybe even a moral obligation – in securing their students’ safety in off-campus housing. Besides the practical suggestions above, she noted that Tufts established a framework toempower students to address landlord-tenant issues themselves – from understanding/signing leases, to reporting violations of building, safety or fire codes, to demanding inspections, and asserting tenants’ rights, etc. Students are the first line of defense in off-campus housing; the more empowered they are, the further along we are in protecting their safety. As another audience member noted, these are the life skills that colleges and universities are uniquely positioned to foster.