Nero v. Kansas State University

Decision Date22 September 1993
Docket NumberNo. 68564,68564
Parties, 86 Ed. Law Rep. 1053 Shana NERO, Appellant, v. KANSAS STATE UNIVERSITY, Appellee.
CourtKansas Supreme Court

Syllabus by the Court

1. To recover for negligence, the plaintiff must prove the existence of a duty, breach of that duty, injury, and a causal connection between the duty breached and the injury suffered. Whether a duty exists is a question of law. Whether the duty has been breached is a question of fact.

2. There is no duty to control the conduct of a third person to prevent him or her from causing physical harm to another unless (a) a special relation exists between the actor and the third person that imposes a duty upon the actor to control the third person's conduct, or (b) a special relation exists between the actor and the other that gives to the other a right to protection.

3. A special relationship or specific duty has been found if one creates a foreseeable peril, not readily discoverable, and fails to warn.

4. The common law generally does not impose a duty upon a party to control the conduct of another, or to warn of such conduct, unless that party stands in some special relationship either to the person whose conduct needs to be controlled or to the foreseeable victim of such conduct.

5. A university is not an insurer of the safety of its students nor does it police student morality; nonetheless, the university has a duty to regulate and supervise foreseeable dangerous activities occurring on its property. That duty extends to the negligent or intentional activities of third persons. Because of the extensive freedom the modern university student enjoys, the duty of the university to regulate and supervise should be limited to those instances in which the university exercises control.

6. Whether risk of harm is reasonably foreseeable is a question to be determined by the trier of fact. Only if reasonable persons could arrive at but one conclusion may the court determine the question as a matter of law.

7. A proprietor of an inn, tavern, restaurant, or like business is liable for an assault upon a guest or patron by another guest or third party if the proprietor has reason to anticipate such an assault and fails to exercise reasonable care to forestall or prevent the same.

8. The general rule is that a landowner has no duty to protect an invitee on the landowner's premises from a third party's criminal attack unless the attack is reasonably foreseeable. Prior similar acts committed upon invitees furnish actual or constructive notice to a landowner.

9. A university owes student tenants the same duty to exercise due care for their protection as a private landowner owes its tenants.

10. A university has a duty of reasonable care to protect a student against certain dangers, including criminal actions against a student by another student or a third party if the criminal act is reasonably foreseeable and within the university's control.

11. Under the Kansas Tort Claims Act, K.S.A. 75-6101 et seq., liability is the rule and immunity is the exception. The governmental entity has the burden of proving it is entitled to any of the exceptions enumerated in K.S.A.1992 Supp. 75-6104.

12. If there is a clearly defined mandatory duty or guideline, the discretionary function exception to the Kansas Tort Claims Act is not applicable.

13. The decision to undertake a voluntary or certain task is discretionary; however, once that decision is made, the State is not immune from liability under K.S.A.1992 Supp. 75-6104(e) for negligence in carrying out a ministerial act in furtherance of the task.

14. The discretionary function exception to the Kansas Tort Claims Act, K.S.A.1992 Supp. 75-6104(e), is not applicable in those situations in which a legal duty exists, either by case law or by statute, that the governmental agency is required to follow. The governmental agency properly cannot claim that its challenged action falls within the discretionary function exception if the action taken has violated a legal duty.

15. In an action against a university for damages arising out of a sexual assault occurring in housing furnished by the university for its students, it is held: The landlord had a legal duty to use reasonable care under the circumstances in protecting the occupants of the coed housing unit from foreseeable criminal conduct while in a common area.

William Scott Hesse of Myers, Pottroff and Ball, Manhattan, argued the cause, and Jerry Kirksey and Roy S. Dickinson, of Jerry Kirksey & Associates, Edmond, OK, were with him on the brief for appellant.

Jennifer M. Kassebaum, Associate University Atty., argued the cause, and Dorothy L. Thompson, Associate University Atty., was on the brief, for appellee.

ABBOTT, Justice:

Shana Nero appeals from the trial court's grant of summary judgment to Kansas State University (KSU). At issue is whether KSU has a duty to protect residents of university residence halls and, if so, the nature and extent of that duty.

Shana Nero was sexually assaulted in a coed residence hall by a fellow residence hall student, Ramon Davenport.

Thirty-five days earlier, Ramon Davenport resided in Moore Hall, a coed residence hall at KSU. On that date, April 28, 1990, Ramon Davenport was accused of raping J.N., a female resident of Moore Hall.

The following Monday, April 30, 1990, because of the accusation of rape against Davenport and after consultation between KSU housing and student life administrators and staff members, Davenport was assigned temporarily to Marlatt Hall, an all-male residence hall on the other side of the campus. The Assistant Director of Housing, Dr. Rosanne Priote, sent Davenport a letter dated April 30, 1990, confirming the temporary residence hall assignment and requesting he not enter Moore Hall or Derby Food Center until further notice in order to provide "some physical distance" between J.N. and Davenport. After meeting with Davenport, Dr. Susan M. Scott, Associate Dean of Student Life, in a letter dated May 2, 1990, confirmed Davenport's voluntary agreement to be reassigned to Marlatt Hall for the remainder of the academic year. Dr. Scott also commented that because Davenport had agreed to the reassignment, KSU would not initiate immediately a university adjudication of the incident, but reserved the right to do so at a later date depending upon the outcome of the criminal charge. KSU does not have a set policy, practice, or procedure for removing from student housing a student accused of the rape or sexual assault of another student in a residence hall.

On May 2, 1990, Davenport was charged with rape in the Riley County District Court. He pleaded not guilty and was released on bond. The Manhattan Mercury and the Kansas State Collegian reported Davenport's arrest, the charge against him, his plea of not guilty, and his release on bond.

At the close of the 1989-90 academic year, only one residence hall, Goodnow Hall, was available for students attending intersession and summer school. Goodnow Hall was a coed residence hall.

Davenport moved into Goodnow Hall for the 1990 spring intersession, beginning May 18 and ending June 3. Shana Nero, a University of Oklahoma student, came to KSU for the intersession and was assigned to Goodnow Hall. Nero had two brief conversations with Davenport prior to June 2, 1990. She knew he was a KSU student living in the same residence hall.

On June 2, 1990, Nero was doing laundry and watching television in the basement recreation room of Goodnow Hall. Davenport came into the lounge and sexually assaulted her while the two of them were watching television.

On June 4, 1990, KSU terminated Davenport's summer school residence hall contract and instructed him to remove his belongings from Goodnow Hall by 8:00 p.m. that evening and not to enter any food service building or residence hall for any reason.

Nero brought a complaint against Davenport under KSU's Policy Prohibiting Sexual Violence, which had been adopted in 1989. Pursuant to Nero's complaint, Davenport was found to have violated the policy.

On August 29, 1990, Davenport pleaded guilty to the rape of J.N. In exchange for Davenport's plea on the rape charge, the sexual assault charge involving Nero was dropped.

Nero subsequently filed a negligence suit against KSU, alleging the university had a duty to protect her against Davenport's sexual advances and had failed to exercise reasonable care to do so. Nero also filed a claim of sexual assault and battery against Davenport. The trial court granted summary judgment against Davenport, and that judgment is not an issue in this appeal. The trial court granted KSU's motion for summary judgment. Nero appealed to the Court of Appeals. The case was transferred to this court, pursuant to K.S.A. 20-3018(c).

Nero claims the trial court erred in granting KSU's summary judgment motion because the court only partially analyzed whether KSU owed a duty of care to her. According to the plaintiff, KSU had a duty to protect her from Davenport's actions because of the university's "special relationship" with both Davenport and her and because she shared a landlord-tenant relationship with KSU.

"In a negligence action, summary judgment is proper if the only questions presented are questions of law. To recover for negligence, the plaintiff must prove the existence of a duty, breach of that duty, injury, and a causal connection between the duty breached and the injury suffered. Whether a duty exists is a question of law. Whether the duty has been breached is a question of fact." Honeycutt v. City of Wichita, 251 Kan. 451, Syl. p 8, 836 P.2d 1128 (1992).

The trial court, and this court on appeal, first must determine whether a duty exists. Without a duty, there can be no breach to support a plaintiff's claim. Hackler v. U.S.D. No. 500, 245 Kan. 295, 297, 777 P.2d 839 (1989).

In Thies v. Cooper, 243 Kan. 149, 151, 753 P.2d 1280 (1988), this court recogniz...

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