Kavanagh v. Trustees of Boston University
| Decision Date | 08 April 2003 |
| Citation | 440 Mass. 195,795 NE 2d 1170 |
| Parties | KENNETH KAVANAGH vs. TRUSTEES OF BOSTON UNIVERSITY & another. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ.
Michael J. O'Reilly for the plaintiff.
Lawrence S. Elswit for the defendants.
Having been punched by an opposing Boston University player during an intercollegiate basketball game, the plaintiff brought suit against the trustees of Boston University (university) and the coach of the university's team, contending that the university was vicariously liable for the conduct of its "scholarship athlete," and that the university and its coach were negligent in that they "took no steps to prevent this act." Against the coach, Kavanagh also alleged both negligent and intentional infliction of emotional distress. A judge in the Superior Court dismissed the counts alleging vicarious liability and intentional infliction of emotional distress, and granted the defendants' motion for summary judgment on the remaining counts for negligence and negligent infliction of emotional distress. Kavanagh appealed, and we granted the defendants' application for direct appellate review. We now affirm.
1. Facts. On December 22, 1998, the university hosted a men's intercollegiate basketball game against Manhattan College. The plaintiff, Kenneth Kavanagh, was a member of the Manhattan College team. Following a contested rebound during the second half, the referee blew his whistle to signal a foul, and some elbowing and shoving ensued among a few of the competing players. When Kavanagh intervened to break up a developing scuffle between one of his teammates and a university player, he was punched in the nose by another university player, Levar Folk. Folk was immediately ejected from the game. Kavanagh was treated for what turned out to be a broken nose and returned to play later in the same game.
At the time of this incident, Folk was in his senior year. He had been recruited for the university's basketball team by its coach, Dennis Wolff, and came to the university on a full athletic scholarship. As part of the recruitment process, Wolff had met with Folk's high school coaches, who described Folk as a "good kid" and expressed no reservations about his character or comportment on the basketball court. Until the incident involving Kavanagh, Folk had not been involved in any physical altercation during a game and had never been ejected from a game. He had no prior history of physical confrontations or fights with either his own teammates or opposing players.
In his junior year, one year prior to the assault on Kavanagh, Folk had had an argument with Coach Wolff about his manner of play (Wolff believed that Folk was taking too many shots) and about an academic issue (Wolff was concerned that Folk had missed an examination and had tried to secure an excuse for having done so). The argument was heated, but involved no physical contact. Wolff suspended Folk for a period of several games, and Folk resumed team play thereafter without incident until the December, 1998, game against Manhattan College.
Folk's disciplinary history with the university included the imposition of two periods of "residence probation" for violation of the university's policies on noise and alcohol. Neither infraction involved any act of violence or threatened violence.2
Although Kavanagh characterizes the December 22, 1998, game as "the most physical" he ever played, the number of penalties called by the referees was within a normal range. Up until the time he struck Kavanagh during the second half, no technical fouls had been called on Folk, and no university players had been ejected. Kavanagh describes the university team's play as follows: "with reckless abandon," "elbows to people's faces, trying to steal the ball," "after plays, bumping people," "holding you with both their hands, walking by, getting the elbow." He also claimed that Coach Wolff incited the team's aggressiveness by yelling encouragement from the sideline, not substituting for players who were allegedly elbowing opposing players, and calling out praise for his players, despite the fact that they were, in Kavanagh's view, committing fouls.3 Wolff denied that he had ever instructed Folk (or any other player) to hit or fight with any opposing player, and Kavanagh presented no contrary evidence.
Pursuant to National Collegiate Athletic Association (NCAA) rules, Folk was automatically suspended from the following game. No form of penalty or discipline was imposed on the university team, on Coach Wolff, or on any of his assistants. When Wolff talked to Folk about the incident sometime after the game, Folk's explanation for his misconduct was that he "lost it."
2. Discussion. a. Vicarious liability. Kavanagh contends that Folk's status as a scholarship athlete playing for the university made him an agent of the university and that the university is therefore vicariously liable for any torts committed by Folk while playing for the university's basketball team. We reject the proposition that the doctrine of respondeat superior renders schools liable for the acts of their students, and decline to treat scholarship students any differently from paying students for these purposes.
"Broadly speaking, respondeat superior is the proposition that an employer, or master, should be held vicariously liable for the torts of its employee, or servant, committed within the scope of employment." Dias v. Brigham Med. Assocs., Inc., 438 Mass. 317, 319-320 (2002), citing Restatement (Third) of Agency § 2.04 (Tent. Draft No. 2 2001). In determining whether an employer-employee relationship exists, various factors are to be considered, including "the method of payment (e.g., whether the employee receives a W-2 form from the employer), and whether the parties themselves believe they have created an employer-employee relationship." Id. at 322, citing Restatement (Second) of Agency § 220 (2) (1958).
A student's status as student does not, by itself, make the student an "employee" or "servant" of the school the student attends.4 Neither party understands the student's relationship with the school to be one of employment. Students attend school to serve their own interests, not the interests of the school. Hanson v. Kynast, 24 Ohio St. 3d 171, 174 (1986) (). While schools may benefit in various ways from the presence of a particular student, or may benefit in the future from a former student's later success, the student does not attend school to do the school's bidding. Kavanagh has cited no authority for the proposition that the relationship between school and student is that of principal and agent, master and servant, or employer and employee.
The fact that a college or university has facilitated a student's ability to attend that institution by providing a scholarship or other financial assistance does not transform the relationship between the academic institution and the student into any form of employment relationship. While scholarships may introduce some element of "payment" into the relationship, scholarships are not wages. See Rensing v. Indiana State Univ. Bd. of Trustees, 444 N.E.2d 1170, 1173 (Ind. 1983) (). Rather, scholarships pay specific forms of expenses that the student would incur in attending school — tuition, books, room and board — and thereby provide the student with an education. Nor does a scholarship student "work for" the school in exchange for that scholarship. The benefits that may accrue to a school from the attendance of particularly talented athletes is conceptually no different from the benefits that schools obtain from the attendance of other forms of talented and successful students — both as undergraduates and later as alumni, such students enhance the school's reputation, draw favorable attention to the school, and may increase the school's ability to raise funds. A school recruits and provides financial aid to students that it thinks will be good for the school in some respect, and the fact that a particular recruited scholarship student may provide the expected benefit to the school does not affect the nature of the school's legal relationship with the student. Again, scholarship or financial aid notwithstanding, neither side understands the relationship to be that of employer-employee or principal-agent. Thus, in various contexts, courts have rejected the theory that scholarship athletes are "employees" of their schools. See State Compensation Ins. Fund v. Industrial Comm'n of Colo., 135 Colo. 570 (1957) (); Rensing v. Indiana State Univ. Bd. of Trustees, supra (same); Coleman v. Western Mich. Univ., 125 Mich.App. 35 (1983) (same); Korellas v. Ohio St. Univ., 121 Ohio Misc.2d 16 (Ct.Cl. 2002) ().
It is undeniable that a successful athletic program, particularly in popular sports like basketball, can garner substantial revenues for colleges and universities, both directly from the sporting activities themselves (e.g., gate receipts, sale of broadcasting rights) and indirectly from the attention those activities attract (e.g., increased alumni giving). In recent years, the enormity of the revenues at stake in collegiate sports has prompted some to recommend that colleges and universities be allowed...
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