Knoll v. BOARD OF REGENTS OF UNIV. OF NEB.

• Decision Date: 29 October 1999
• Docket Number: No. S-97-1292.,S-97-1292.
• Citation: 601 N.W.2d 757,258 Neb. 1
• Parties: Jeffrey J. KNOLL, appellant, v. BOARD OF REGENTS OF the UNIVERSITY OF NEBRASKA, a corporate governmental body, appellee.
• Court: Nebraska Supreme Court

601 N.W.2d 757

258 Neb. 1

Jeffrey J. KNOLL, appellant, v. BOARD OF REGENTS OF the UNIVERSITY OF NEBRASKA, a corporate governmental body, appellee.

No. S-97-1292.

Supreme Court of Nebraska.

October 29, 1999.

Anne K. Holland and J. Joseph McQuillan, of Walentine, O'Toole, McQuillan & Gordon, and James M. McQuillan and Edward D. Steenburg, of McQuillan, Steenburg & McQuillan, P.C., Omaha, for appellant.

Richard R. Wood, General Counsel for the University of Nebraska, and John C. Wiltse, Lincoln, for appellee.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

CONNOLLY, J.

The appellant, Jeffrey J. Knoll, was a student at the University of Nebraska at Lincoln (UNL). He was hazed by members of the Phi Gamma Delta fraternity (FIJI), which hazing resulted in severe injuries. Knoll brought a tort action against the Board of Regents of the University of Nebraska (University), and both parties filed for summary judgment. The trial court granted summary judgment to the University, finding no duty. This case presents the question whether the University owed Knoll a duty to exercise reasonable care to protect Knoll from FIJI's actions. We conclude that whether a duty was owed is a question of law and determine that a duty was owed. We reverse.

BACKGROUND

The stipulated facts and deposition testimony offered at the hearing on the parties motion for summary judgment show the following: On November 3, 1993, during FIJI's "pledge sneak," four or five active FIJI members met Knoll in the basement of Andrews Hall on the UNL campus. Knoll attempted to run, was tackled by the active members, and was then handcuffed to an active member. Knoll was taken to the FIJI house where he was handcuffed to a radiator. While handcuffed to the radiator, Knoll was given shot glasses of an alcoholic liquor and cans of beer by FIJI's officers and active members. Over the course of approximately 2frac12; hours, Knoll consumed 15 shots of brandy and whiskey and 3 to 6 cans of beer. Knoll became severely intoxicated and could no longer provide for his own welfare and safety. After becoming ill due to his intoxication, Knoll was taken to a restroom on the third floor of the FIJI house by his captors and handcuffed to a toilet pipe. Knoll broke loose from the handcuffs while unattended in the restroom and attempted to escape by exiting out the third-floor restroom window and sliding down a drainpipe. Knoll fell from the third-floor window to the ground below and suffered severe injuries. Knoll had a blood alcohol content of .209 grams of alcohol per 100 milliliters of blood. Knoll was 19 years of age when he fell and was injured.

The FIJI house is situated on land owned by the Phi Gamma Delta House Corporation. The FIJI house is considered to be a student housing unit subject to the UNL Student Code of Conduct (Code). The use of any alcoholic beverage in a student housing unit was a violation of the student housing regulations then in effect and a violation of the Code. Conduct that is unreasonably dangerous to the health or safety of other persons, or oneself, was also a violation of the Code, as was hazing. Unmarried students who were under the age of 19 at the beginning of the fall semester of the 1993-94 academic year were required by the University to live in a student housing unit during their freshman year.

It is routine for fraternities located at the UNL campus to participate in pledge sneak events. These fraternities are supposed to complete a form disclosing whether a pledge sneak event is planned and the details of that event, and file the form with the University. FIJI had not filed a pledge sneak form as of the date Knoll fell. However, the University was aware of at least two hazing incidents involving other fraternities and was aware of several instances of criminal conduct involving FIJI members.

Knoll filed suit against the University, alleging that the University had acted negligently in failing to enforce prohibitions against acts of hazing, the consumption of alcohol, and physically abusive behavior when the University knew or should have known that the FIJI house was in violation of the rules prohibiting such activities. The University filed a motion for summary judgment asserting that it did not owe Knoll a duty. Knoll likewise filed a motion for summary judgment, asserting that Knoll was entitled to judgment as a matter of law. The trial court sustained the University's motion and denied Knoll's. Knoll appeals the court's granting of the University's motion but did not appeal the denial of his motion for summary judgment.

ASSIGNMENTS OF ERROR

Knoll asserts that the trial court erred in concluding that the University did not have a duty to supervise the FIJI house and to protect Knoll from harm and that the trial court erred in not finding a breach of that duty.

SCOPE OF REVIEW

In reviewing a summary judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence. Woodard v. City of Lincoln, 256 Neb. 61, 588 N.W.2d 831 (1999).

ANALYSIS

The threshold inquiry in any negligence action is whether the defendant owed the plaintiff a duty. See Popple v. Rose, 254 Neb. 1, 573 N.W.2d 765 (1998). Actionable negligence cannot exist if there is no legal duty to protect the plaintiff from injury. Id. In determining whether a duty exists, this court employs a risk-utility test, considering (1) the magnitude of the risk, (2) the relationship of the parties, (3) the nature of the attendant risk, (4) the opportunity and ability to exercise care, (5) the foreseeability of the harm, and (6) the policy interest in the proposed solution. Id. Foreseeability alone is not dispositive. Id.

Knoll argues that the University owed him a duty as a landowner based on FIJI's handcuffing and abducting Knoll on the University's property. We have held that a business proprietor is liable for the adverse actions of a third party against an invitee when those actions were reasonably foreseeable to the proprietor. Ratigan v. K.D.L., Inc., 253 Neb. 640, 573 N.W.2d 739 (1998). See, also, Gans v. Parkview Plaza Partnership, 253 Neb. 373, 571 N.W.2d 261 (1997) (holding that landlord has duty to protect tenant against foreseeable criminal acts of third persons). UNL students, such as Knoll, are clearly the University's invitees. E.g., Nero v. Kansas State University, 253 Kan. 567, 861 P.2d 768 (1993) (noting that all but one court to address issue has concluded that students are invitees). See, also, Johnson v. State, 77 Wash.App. 934, 894 P.2d 1366 (1995) (holding that on-campus student residents are invitees).

The University contends that the landowner liability theory does not apply in the instant case because the actions that took place on the University's property were not criminal in nature, but, rather, were simply "horseplay." However, a third party's action need not amount to a violation of the criminal law to give rise to liability; such an act may be sufficient even if it is merely accidental. See Hulett v. Ranch Bowl of Omaha, 251 Neb. 189, 556 N.W.2d 23 (1996) (stating that third person's act may be accidental, negligent, or intentionally harmful).

The University also argues that it owed no duty because Knoll had superior knowledge of the danger. In Richardson v. Ames Avenue Corp., 247 Neb. 128, 525 N.W.2d 212 (1995), we stated that landowner liability is predicated on proof of the possessor's superior knowledge, actual or constructive, of dangers to which the invitee is subjected and of which the invitee is unaware. However, the landowner liability at issue in Richardson was not predicated on the acts of third parties; rather, it concerned a condition of the land itself.

The "superior knowledge rule" does not apply to the instant case, which involves liability for the intentionally harmful acts of a third party. An invitee may very well know that the intentionally harmful acts of a third party are foreseeable on the landowner's property. That fact does not obviate the invitee's expectation that the landowner will exercise reasonable care in providing protection. If it did, landowners in obviously high crime areas would have no duty to provide protection at all, since an invitee would always be aware of the danger. Awareness of the danger in such cases is irrelevant; it is the landowner that has superior knowledge of, and the ability to provide, protection.

We conclude that the landowner liability theory applies in the instant case and that thus, if FIJI's actions in handcuffing and abducting Knoll were reasonably foreseeable, the University owed Knoll a duty to protect.

This court has long held that whether a legal duty exists for actionable negligence is a question of law dependent on the facts in a particular situation. Doe v. Gunny's Ltd. Partnership, 256 Neb. 653, 593 N.W.2d 284 (1999); Popple v. Rose, 254 Neb. 1, 573 N.W.2d 765 (1998). Prosser and Keeton have stated:

[Duty] is entirely a question of law ... and it must be determined only by the court. It is no part of the province of a jury to decide ... whether the Long Island Railroad is required to protect Mrs. Palsgraf from fireworks explosions. A decision by the court that, upon any version of the facts, there is no duty, must necessarily result in judgment for the defendant. A decision that, if certain facts are found to be true, a duty exists, leaves open the other questions now under consideration [which are the weight and sufficiency of the evidence, and the general and particular standard of conduct].

(Emphasis supplied.) W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 37 at 236 (5th ed.1984).

As the quotation from Prosser and Keeton demonstrates, in the context of determining the existence of a duty, foreseeability is a question of law for the court to resolve....