Mullins v. Pine Manor College

• Decision Date: 02 May 1983
• Citation: 449 N.E.2d 331,389 Mass. 47
• Parties: , 11 Ed. Law Rep. 595 Lisa MULLINS v. PINE MANOR COLLEGE et al. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 331

449 N.E.2d 331

389 Mass. 47, 11 Ed. Law Rep. 595

Lisa MULLINS v. PINE MANOR COLLEGE et al. ¹

Supreme Judicial Court of Massachusetts Norfolk.

Argued Oct. 7, 1982.

Decided May 2, 1983.

Cynthia J. Cohen, Boston (Philander S. Ratzkoff & James F. Meehan, Boston, with her), for defendants.

Albert P. Zabin, Boston, for plaintiff.

Before HENNESSEY, C.J., and WILKINS, LIACOS, NOLAN and O'CONNOR, JJ.

LIACOS, Justice.

The plaintiff, a female student at Pine Manor College (college), was raped on campus by an unidentified assailant who was never apprehended. She commenced this action against the college and its vice president for operations, William P. Person, to recover damages for injuries suffered. The case was tried before a jury in the Superior Court. The jury returned verdicts against the college and Person in the amount of $175,000. ² Pursuant to G.L. c. 231, § 85K, the trial judge reduced the amount of the judgment against the college to $20,000. The college and Person appeal from the denial of their motions for directed verdicts and for judgments notwithstanding the verdicts. We granted their applications for direct appellate review. We affirm the judgments.

There was evidence of the following facts. Pine Manor College is a four year college for women located in the Chestnut Hill section of Brookline. In 1977, approximately 400 students attended the school. The campus is surrounded on all sides by a six foot high chain link fence, except for an area on either side of the main entrance to the campus where the fence stands four feet tall. The college's dormitories are clustered together in three villages. Each village is comprised of a commons building and a number of separate dormitory buildings. The buildings are arranged to form a square. To gain access to a dormitory, a student must enter an enclosed courtyard through either the commons building or one of three exterior gates. Between 5 p.m. and 7 a.m., these gates and the door to the commons building are locked. Students enter their dormitory through locked doors which open directly into the courtyard. Each student had one key which unlocked the doors to her commons building, her dormitory building, and her individual room.

After 8 p.m., all visitors were admitted by a security guard at the main entrance to the campus. The guard would direct them to the appropriate commons building. At the entrance to the commons building, visitors would be stopped by a student on duty and would be registered. ³ The student hostess would be notified and was required to come to the commons building to act as the visitor's escort. No visitors were permitted anywhere on campus unescorted after 1 a.m. on weekends.

At the time of the rape, the college had two guards on duty after midnight. One guard was stationed in an observation post at the main entrance. The second guard was assigned to patrol the campus. He was responsible for making rounds to the villages every fifteen to thirty minutes to check the doors and gates to see that they were locked. The college had no formal system of supervising the guards. Rather, the director of security at the college would make random checks on their work.

Mullins was a first year student and, as required by the college, she lived on campus. Her dormitory housed thirty women. Under college regulations, male visitors were permitted to stay overnight. ⁴ Mullins was assigned to a single room at the end of a corridor. Another student resided in a room located adjacent to hers. The doors to these two rooms were at a right angle to each other.

On December 11, 1977, Mullins returned to her dormitory at approximately 3 a.m. with two friends. It was a bitter cold night. They entered the village through one of the exterior gates to the courtyard. It was unlocked. They opened the door to their dormitory and proceeded to their rooms. After changing into her night clothes, Mullins, leaving the door to her room open, went to talk with a friend who resided in the room next door. They talked for a few minutes, apparently near the open door to the friend's room. Mullins returned to her room, locked her door, and went to sleep. Between 4 a.m. and 4:30 a.m., she was awakened by an intruder. He asked her where her car was located, and she responded that she did not have a car. The intruder then threatened her and placed a pillow case over her head. He led her out of the building and across the courtyard. They left the courtyard by proceeding under the chains of one of the exterior gates which was not secured tightly. They walked down a bicycle path toward the refectory, the college's dining hall. After marching about in front of the refectory, they entered the refectory through an unlocked door and spent several minutes inside. They proceeded out of the refectory and marched around in front. They then went back inside, and the assailant raped her. The entire incident lasted sixty to ninety minutes, and they were outside on the campus for at least twenty minutes.

Pine Manor is located in an area with relatively few reports of violent crime. In the years prior to this attack, there had been no incidents of violent crime on the campus. The record discloses, however, that one year before the attack a burglary had occurred in one of the dormitory buildings. Additionally, the evening before the rape, a young man scaled the outer fence around the campus and walked into the commons building of Mullins's village, which was the first building he saw. The door to the building was open. The college is also located a short distance from bus and subway lines which lead directly to Boston.

Additional facts, including the testimony of expert witnesses, will be discussed as they become relevant.

1. Duty to protect against criminal acts. The defendants argue that they owe no duty to protect students against the criminal acts of third parties. They rely on the general proposition that there is no duty to protect others from the criminal or wrongful activities of third persons. See Restatement (Second) of Torts § 314 (1965). Cf. W. Prosser, Torts § 33, at 173-174 (4th ed. 1971) (actor may usually assume others will obey criminal law). But see Restatement (Second) of Torts §§ 302B, 314A & 448 (1965). We conclude that this rule has little application to the circumstances of this case.

The duty of due care owed the plaintiff by the defendants in the present case can be grounded on either of two well established principles of law. First, we have said that a duty finds its "source in existing social values and customs." Schofield v. Merrill, 386 Mass. 244, 247, 435 N.E.2d 339 (1982). See Pridgen v. Boston Hous. Auth., 364 Mass. 696, 711, 308 N.E.2d 467 (1974); Mounsey v. Ellard, 363 Mass. 693, 706-708, 297 N.E.2d 43 (1973). We think it can be said with confidence that colleges of ordinary prudence customarily exercise care to protect the well-being of their resident students, including seeking to protect them against the criminal acts of third parties. An expert witness hired by the defendant testified that he had visited eighteen area colleges, and, not surprisingly, all took steps to provide an adequate level of security on their campus. He testified also that standards had been established for determining what precautions should be taken. ⁵ Thus, the college community itself has recognized its obligation to protect resident students from the criminal acts of third parties. This recognition indicates that the imposition of a duty of care is firmly embedded in a community consensus.

This consensus stems from the nature of the situation. The concentration of young people, especially young women, on a college campus, creates favorable opportunities for criminal behavior. The threat of criminal acts of third parties to resident students is self-evident, and the college is the party which is in the position to take those steps which are necessary to ensure the safety of its students. No student has the ability to design and implement a security system, hire and supervise security guards, provide security at the entrance of dormitories, install proper locks, and establish a system of announcement for authorized visitors. ⁶ Resident students typically live in a particular room for a mere nine months and, as a consequence, lack the incentive and capacity to take corrective measures. College regulations may also bar the installation of additional locks or chains. Some students may not have been exposed previously to living in a residence hall or in a metropolitan area and may not be fully conscious of the dangers that are present. ⁷ Thus, the college must take the responsibility on itself if anything is to be done at all. Cf. Young v. Garwacki, 380 Mass. 162, 168, 402 N.E.2d 1045 (1980).

Of course, changes in college life, reflected in the general decline of the theory that a college stands in loco parentis to its students, arguably cut against this view. ⁸ The 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. Parents, students, and the general community still have a reasonable expectation, fostered in part by colleges themselves, that reasonable care will be exercised to protect resident students from foreseeable harm.

The duty of care in this case can be grounded in another theory. It is an established principle that a duty voluntarily assumed must be performed with due care. Black v. New York, N.H., & H.R.R., 193 Mass. 448, 79 N.E. 797 (1907). See Phillips v. Chicago Hous. Auth., 89 Ill.2d 122, 123, 59 Ill.Dec. 281, 431 N.E.2d 1038 (1982); Cross v. Wells Fargo Alarm Servs., 82 Ill.2d 313, 45 Ill.Dec. 121, 412 N.E.2d 472 (1980); Pippin v. Chicago Hous. Auth., 78 Ill.2d 204, 35 Ill.Dec. 530, 399 N.E.2d 596 (1979). Restatement (Second) of Torts § 323 (1965), states: "One who undertakes, gratuitously or for consideration, to render services to...