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On Behalf of | Jan 11, 2019 | Firm News

Plaintiff Carson Barenborg was dancing on a makeshift raised platform at a fraternity party near the University of Southern California (USC) when another partygoer bumped into her, causing her to fall to the ground and suffer serious injuries. Barenborg, who was not a USC student, sued USC and others for negligence, alleging that the university had a duty to protect her from an unreasonable risk of harm and breached that duty by failing to prevent or shut down the party. The trial court denied USC’s motion for summary judgment. USC filed a petition for a peremptory writ of mandate challenging the denial. USC contends that it had no duty to protect members of the public from the conduct of a third party at an off-campus fraternity party. The appeal court agreed and granted the petition.

Several fraternities and sororities affiliated with USC occupy houses in an area near the USC campus known as Greek Row, including a chapter of Sigma Alpha Epsilon Fraternity.

On October 10, 2013, the day of a home football game, several fraternities, including Cal. Gamma, held parties on Greek Row where alcohol was served. The street was crowded with partygoers. USC’s Policy on Alcohol and Other Drugs required fraternities and sororities to obtain prior authorization to serve alcohol at social events. USC’s Social Events Policy prohibited parties after 10 p.m. on evenings preceding school days, and allowed parties only between Fridays at 3:00 p.m. and Sundays at 5:00 p.m.

Cal. Gamma’s party on Thursday, October 10, 2013, was unauthorized and violated both of these policies. USC was aware of prior violations of university policy and other misconduct at Cal. Gamma, some involving the use of alcohol, and had recently issued warnings and imposed discipline on the fraternity.

USC’s Department of Public Safety (DPS) employed safety officers who patrolled the USC campus and Greek Row. On October 10, 2013, before Barenborg’s injury, two DPS officers visited Cal. Gamma several times in response to complaints of loud music and public drinking. On each visit, they saw an abundance of alcohol on the property. They asked the person in charge at Cal. Gamma to turn down the music and reminded him that public drinking was not allowed, but they did not shut down the party. The two officers were not aware of USC’s policy prohibiting parties on Thursdays and generally were untrained in the enforcement of USC’s policies governing alcohol use and social events.

Barenborg was a 19-year-old student at Loyola Marymount University at the time of her injury. On October 10, 2013, she visited parties on Greek Row with a group of friends. Barenborg consumed cocaine and five to seven alcoholic beverages before arriving at Cal. Gamma, and she continued drinking alcohol after she arrived there. The Cal. Gamma party was in the backyard of the fraternity house on and around a basketball court. There were approximately 200 to 250 people at the party. A platform approximately seven feet tall constructed from tables was being used for dancing. Barenborg and two female friends were stepping up onto the platform where USC student Hollis Barth and another woman were dancing when Barth gave them an unwelcoming look. Just as Barenborg and one of her friends reached the top of the platform, Barth bumped Barenborg and her friend off the platform, they fell to the ground, and Barenborg sustained serious injuries.

During the litigation, Plaintiff argued  the negligent undertaking doctrine by defendant USC.

This is a summary of the trial court’s ruling on denying defendant USC’s motion for summary judgment:

“The Court cannot determine that, as a matter of law, Defendant did not owe Plaintiff a duty of care. There are triable issues of material fact as to the existence of a special relationship between Defendant and Plaintiff. Specifically, evidence before the Court suggests Defendant was aware that alcohol abuse in the Greek System, including SAE, was a problem that caused accidents and injuries, Defendant asserted control over SAE and/or SAE’s ability to have events, Defendant voluntarily assumed a protective duty to Plaintiff by having DPS officers patrol and enforce the policies, and Plaintiff relied on Defendant/DPS to provide her with a safe environment.”

This is the law and reasoning of the Appeal Court:

A duty of care is an essential element of a negligence cause of action. (Regents of the University of California v. Superior Court (2018) 4 Cal.5th 607, 618.) “The determination whether a particular relationship supports a duty of care rests on policy and is a question of law. [Citation.]” (Id. at p. 620.)

“‘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.”’” [Citation.] “Courts, however, have invoked the concept of duty to limit generally ‘the otherwise potentially infinite liability which would follow from every negligent act. . . .’”’ [Citation.]” (Beacon Residential Community Assn. v. Skidmore, Owings & Merrill LLP (2014) 59 Cal.4th 568, 573.) As a general rule, each person has a duty to exercise reasonable care to avoid causing injury to others. (Civ. Code, § 1714, subd. (a); Regents, supra, 4 Cal.5th at p. 619; Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 771.)

However, a person who has not created a peril generally has no duty to take affirmative action to protect against it, and a person generally has no duty to protect another from the conduct of third parties. (Regents, at p. 619 [‘“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”]; Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 235 [Emphasis added.] [“as a general matter, there is no duty to act to protect others from the conduct of third parties”]; Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1129 (Zelig) [“‘[a]s a general rule, one owes no duty to control the conduct of another, nor to warn those endangered by such conduct’”].) Courts have recognized exceptions to the general rule of no duty with respect to third party conduct where a “special relationship” exists and where the defendant engages in a  “negligent undertaking.” (Regents, supra, 4 Cal.5th at pp. 619– 620; Delgado, supra, 36 Cal.4th at p. 249.)

A defendant may owe a duty to protect the plaintiff from third party conduct if the defendant has a special relationship with either the plaintiff or the third party. (Regents, supra, 4 Cal.5th at pp. 619–620; Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 435; Rest.3d Torts, Liability for Physical and Emotional Harm, §§ 40, 41.) A related but separate basis for such a duty is where the defendant voluntarily undertakes to provide protective services for the plaintiff’s benefit, and either (a) the defendant’s failure to exercise reasonable care increases the risk of harm to the plaintiff, or (b) the plaintiff reasonably relies on the undertaking and suffers injury as a result. (Delgado, supra, 36 Cal.4th at pp. 248–249; Williams v. State of California (1983) 34 Cal.3d 18, 23; Rest.3d Torts, supra, § 42.)

Regents stated, “When the particular problem of alcohol related injuries is not involved, our cases have taken a somewhat broader view of a university’s duties toward its students.” (Regents, supra, 4 Cal.5th at p. 623; italics added.)   Regents concluded that postsecondary schools have a special relationship with their students “while they are engaged in activities that are part of the school’s curriculum or closely  13 related to its delivery of educational services.”8 (Regents, supra, 4 Cal.5th at pp. 624–625.)

Regents noted the limits of such a special relationship, stating: “Of course, many aspects of a modern college student’s life are, quite properly, beyond the institution’s control. Colleges generally have little say in how students behave off campus, or in their social activities unrelated to school. It would be unrealistic for students to rely on their college for protection in these settings, and the college would often be unable to provide it. This is another appropriate boundary of the college-student relationship: Colleges are in a special relationship with their enrolled students only in the context of school-sponsored activities over which the college has some measure of control.” (Regents, supra, 4 Cal.5th at p. 626.) Regents concluded that as a result

Unlike the plaintiff in Regents, supra, 4 Cal.5th 607, Barenborg was not a student attending the defendant university at the time of her injury, and she was not engaged in an activity closely related to the delivery of educational services.  Barenborg argued that USC had a special relationship with her based on its control of the property because the fraternity house was subject to USC’s policies and was monitored by its public safety officers.

Here, in contrast, USC did not exercise control over the property where the injury occurred.

Barenborg also argues that USC had a special relationship with her because “security personnel hired by a business also have a special relationship with visitors to the property,” citing Marois v. Royal Investigation & Patrol, Inc. (1984) 162 Cal.App.3d 193, and a special relationship with Cal. Gamma.  The special relationship recognized in Regents, supra, 4 Cal.5th 607, was limited to enrolled students “while they are engaged in activities that are part of the school’s curriculum or closely related to its delivery of educational services.” (Id. at p. 625.)   An unauthorized party with alcohol fail here.

The Appeal Court concluded that by adopting policies regarding alcohol use and social events and providing a security patrol both on and off campus, USC did not assume a duty to protect invitees from third-party conduct at fraternity parties. Again, a college has little control over such noncurricular, off campus activities, and it would be unrealistic for students and their guests to rely on the college for protection in those settings. These considerations support the conclusion not only that there was no special relationship, but also that by adopting those measures to promote safety and a suitable learning environment, USC did not assume a duty to protect guests at off-campus fraternity parties from the conduct of other guests. (See Mynhardt v. Elon University (2012) 220 N.C.App. 368, 375 [by adopting rules and regulations on alcohol use, university did not assume a duty to protect student from injury at an off-campus fraternity party].    The Court noted the evidence did not support an inference that USC’s conduct increased the risk of harm to Barenborg, or,   did it support an inference that Barenborg actually or reasonably relied on USC to protect her from harm.

The Appeal Court applied the  Rowland v. Christian (1968) 69 Cal.2d 108, 113 factors and still concluded USC owed no dutied to Barenborg.

The petition was granted. A peremptory writ of mandate issued directing the trial court to vacate its order denying USC’s motion for summary judgment and enter a new order granting the motion.

There was no mention of how Cal. Gamma or other defendant’s fared in this litigation, presumably the case settled or went to trial.  On a note, no criminal charges were brought against Hollis Barth.  Was he sent to “Student Life?”  Placed on “Double Secret“* probation, along with Cal. Gamma?

The case is interesting being published around the time of Supreme Court Justice Brett Kavanaugh’s nomination amid allegations of college drinking and sexual assault, and in this writer’s experience and opinion, a trial court’s position of not letting the USC University institution off the hook so easily; given student tuition and what not.  Democrat trial court judge?

This should be the first real life lesson for Cal. Gamma and it’s frat’ boy members.  More than likely the Cal. Gamma Fraternity was represented by it’s liability insurance.  This could mean increased premiums for the Fraternity.

Grade: “F”   The House will probably make the annual issue of “Fail” magazine, centerfold.

If you are personally injured, you need an informed and aggressive attorney to advocate for your damages.  Contact the Law Office of Robert Rodriguez for your personal injury matter.

Robert Rodriguez has litigated well over 100 family law cases and civil litigation matters including personal injury motor vehicle cases, dog bite and slip & fall cases, breach of contract, defamation & invasion of privacy, fraud, unfair business practice, malicious prosecution, wrongful termination, workplace and employment matters including sexual harassment, wage & hour violations, discrimination pursuant to the FEHA, Gov’t Code §§ 12940 et seq., violations of the FMLA & Pregnancy Leave, Civil Rights  discrimination pursuant to 42 U.S.C. § 1983 and Title VII of the 1964 Civil Rights Act in the State of California and California federal district courts.

* Disclaimer – Robert Rodriguez is licensed to practice only in the State of California & this analysis is applied only under State of California law.  Robert D. Rodriguez is also admitted to practice in the U.S. District Courts, Central, Northern & Eastern Districts of California.  Robert Rodriguez has practiced in the State of California Court of Appeal.

* “Animal House” – 1978