Ross v. Creighton University, 90-2509

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Citation957 F.2d 410
Docket NumberNo. 90-2509,90-2509
Parties73 Ed. Law Rep. 352 Kevin ROSS, Plaintiff-Appellant, v. CREIGHTON UNIVERSITY, Defendant-Appellee.
Decision Date02 March 1992

Marty J. Schwartz (argued), Louis S. Goldstein, Cindy G. Fluxgold, Bruce S. Kreisman, and Michael A. Kaczmark, Goldstein & Fluxgold, Chicago, Ill., for plaintiff-appellant.

Lynn D. Dowd (argued), D. Patterson Gloor, Cassiday, Schade & Gloor, Chicago, Ill., for defendant-appellee.

Before RIPPLE and KANNE, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

RIPPLE, Circuit Judge.

Kevin Ross filed suit against Creighton University (Creighton or the University) for negligence and breach of contract arising from Creighton's alleged failure to educate him. The district court dismissed Mr. Ross' complaint for failure to state a claim. For the following reasons we affirm in part and reverse in part the judgment of the district court.

A. Facts

When reviewing the grant of a motion to dismiss, we assume the truth of all well-pleaded factual allegations and make all reasonable inferences in favor of the plaintiff. Webster v. New Lenox School Dist. No. 122, 917 F.2d 1004, 1005 (7th Cir.1990). Mr. Ross' complaint reveals the following story.

In the spring of 1978, Mr. Ross was a promising senior basketball player at Wyandotte High School in Kansas City, Kansas. Sometime during his senior year in high school, he accepted an athletic scholarship to attend Creighton and to play on its varsity basketball team.

Creighton is an academically superior university. Mr. Ross comes from an academically disadvantaged background. At the time of his enrollment at Creighton, Mr. Ross was at an academic level far below that of the average Creighton student. For example, he scored in the bottom fifth percentile of college-bound seniors taking the American College Test, while the average freshman admitted to Creighton with him scored in the upper twenty-seven percent. According to the complaint, Creighton realized Mr. Ross' academic limitations when it admitted him, and, to induce him to attend and play basketball, Creighton assured Mr. Ross that he would receive sufficient tutoring so that he "would receive a meaningful education while at CREIGHTON." R.44 at Count I, p 10.

Mr. Ross attended Creighton from 1978 until 1982. During that time he maintained a D average and acquired 96 of the 128 credits needed to graduate. However, many of these credits were in courses such as Marksmanship and Theory of Basketball, and did not count towards a university degree. Mr. Ross alleges that he took these courses on the advice of Creighton's Athletic Department, and that the department also employed a secretary to read his assignments and prepare and type his papers. Mr. Ross also asserts that Creighton failed to provide him with sufficient and competent tutoring that it had promised.

When he left Creighton, Mr. Ross had the overall language skills of a fourth grader and the reading skills of a seventh grader. Consequently, Mr. Ross enrolled, at Creighton's expense, for a year of remedial education at the Westside Preparatory School in Chicago. At Westside, Mr. Ross attended classes with grade school children. He later entered Roosevelt University in Chicago, but was forced to withdraw because of a lack of funds. In July 1987, Mr. Ross suffered what he terms a "major depressive episode," during which he barricaded himself in a Chicago motel room and threw furniture out the window. R.44 at Count I, p 26. To Mr. Ross, this furniture "symbolized" Creighton employees who had wronged him. Id.

B. District Court Proceedings

Mr. Ross filed suit against Creighton in Cook County (Illinois) Circuit Court for negligence and breach of contract. Creighton, which is located in Omaha, Nebraska, removed the case to federal court on diversity grounds, pursuant to 28 U.S.C. §§ 1332 and 1441.

Mr. Ross' complaint advances three separate theories of how Creighton was negligent towards him. First, he contends that Creighton committed "educational malpractice" by not providing him with a meaningful education and preparing him for employment after college. Second, Mr. Ross claims that Creighton negligently inflicted emotional distress upon him by enrolling him in a stressful university environment for which he was not prepared, and then by failing to provide remedial programs that would have helped him survive there. Third, Mr. Ross urges the court to adopt a new cause of action for the tort of "negligent admission," which would allow recovery when an institution admits, and then does not adequately assist, a woefully unprepared student. The complaint also sets forth a contract claim, alleging that Creighton contracted to provide Mr. Ross "an opportunity ... to obtain a meaningful college education and degree, and to do what was reasonably necessary ... to enable [Mr. Ross] to obtain a meaningful college education and degree." R.44 at Count III, p 24. It goes on to assert that Creighton breached this contract by failing to provide Mr. Ross adequate tutoring; by not requiring Mr. Ross to attend tutoring sessions; by not allowing him to "red-shirt," that is, to forego a year of basketball, in order to work on academics; and by failing to afford Mr. Ross a reasonable opportunity to take advantage of tutoring services. Mr. Ross also alleges that Creighton breached a promise it had made to him to pay for a college education.

Creighton moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6), and the district court granted this motion. Ross v. Creighton Univ., 740 F.Supp. 1319 (N.D.Ill.1990). 1 With regard to the negligence claims, the court held that the first of Mr. Ross' negligence theories--educational malpractice--would not be allowed by the Illinois Supreme Court if it faced such a claim as a matter of first impression. Id. at 1329. Characterizing this theory as one "beloved of commentators, but not of courts," the court reasoned that the difficulties in determining causation With regard to the contract claims, the court recognized that the relationship between a student and a university is at least partly contractual. Id. at 1330-31 (citing Carr v. St. John's Univ., 17 A.D.2d 632, 231 N.Y.S.2d 410 (App.Div.), aff'd without opinion, 12 N.Y.2d 802, 235 N.Y.S.2d 834, 187 N.E.2d 18 (1962)). However, the court concluded that a breach of contract action could be maintained only for the breach of a specific contractual promise that did not require the court to assess the general quality of the education. Id. at 1331. In the district court's view, none of Mr. Ross' allegations met these criteria. Consequently, the contractual counts were dismissed.

                and the duty owed, the intensely collaborative nature of education, and the possibility of a deluge of educational malpractice claims would compel Illinois to reject this cause of action.  Id. at 1327-29.   The court also held that a claim for negligent infliction of emotional distress exists in Illinois only if the plaintiff was physically harmed by the negligent act, within the "zone of danger" of physical harm, or the victim of a traditional tort such as medical malpractice.   Since Mr. Ross' claim did not fit any of these categories, the court denied his claim on that theory.  Id. at 1329-30.   Finally, the court held that Illinois would refuse on policy grounds to permit Mr. Ross' newly fashioned claim for negligent admission to Creighton.   The court reasoned that allowing this cause of action would unduly burden universities and also endanger the college prospects of many marginal students by requiring schools to factor into their admissions decisions the costs of tort damages resulting from a negligent admission.  Id. at 1330
A. Guiding Principles

As an appellate court, we review de novo a Rule 12(b)(6) dismissal for failure to state a claim. Bethlehem Steel Corp. v. Bush, 918 F.2d 1323, 1326 (7th Cir.1990). "A party fails to state a claim upon which relief may be granted only if that party 'can prove no set of facts upon which relief may be granted.' " Id. (quoting First Interstate Bank of Nevada v. Chapman & Cutler, 837 F.2d 775, 776 (7th Cir.1988)). In this diversity case, because neither party raises an issue as to what state's law to apply, we apply the substantive law of Illinois, the forum state. Wood v. Mid-Valley Inc., 942 F.2d 425, 426-27 (7th Cir.1991). Our task, therefore, is to analyze Mr. Ross' complaint against the backdrop of Illinois law to determine if it states a claim. " 'The decision of a federal court in a ... case in which state law provides the rule of decision, is an exercise in predicting how the highest court of the state would decide the case if it were presented to it.' " Midwest Knitting Mills, Inc. v. United States, 950 F.2d 1295, 1298 (7th Cir.1991) (quoting Konradi v. United States, 919 F.2d 1207, 1213 (7th Cir.1990)). If no state statute or precedent directly controls the issue, it is our duty to determine how the case would be decided if presented today to the Supreme Court of Illinois. See Commissioner v. Estate of Bosch, 387 U.S. 456, 465, 87 S.Ct. 1776, 1782-83, 18 L.Ed.2d 886 (1967); Bernhardt v. Polygraphic Co. of America, 350 U.S. 198, 205, 76 S.Ct. 273, 277, 100 L.Ed. 199 (1956); see also Brooks v. Chicago Downs Ass'n, 791 F.2d 512, 514 (7th Cir.1986) ("Because the Illinois Supreme Court has never directly confronted the issue ... we must take what they have said, what Illinois appellate courts have said, and then the decisions of other states on the same issue, in order to formulate our holding."). Cooper v. American Airlines, Inc., 149 F.2d 355, 359 (2d Cir.1945) (Frank, J.) ("What would be the decision of reasonable intelligent lawyers, sitting as judges of the highest New York court, and fully conversant with New York 'jurisprudence'?"). We must make this determination de novo. Salve Regina...

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