Rothbard v. Colgate University

• Decision Date: 09 January 1997
• Citation: 235 A.D.2d 675,652 N.Y.S.2d 146
• Parties: , 115 Ed. Law Rep. 60 Richard ROTHBARD, as Parent and Guardian of Jason Rothbard, et al., Appellants-Respondents, v. COLGATE UNIVERSITY et al., Respondents, and Alumni Association of the Colgate Chapter, Beta Theta of Beta Theta Pi Inc., Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 146

652 N.Y.S.2d 146

235 A.D.2d 675, 115 Ed. Law Rep. 60

Richard ROTHBARD, as Parent and Guardian of Jason Rothbard et al., Appellants-Respondents, v. COLGATE UNIVERSITY et al., Respondents and Alumni Association of the Colgate Chapter, Beta Theta of Beta Theta Pi Inc., Respondent-Appellant.

Supreme Court, Appellate Division Third Department.

Jan. 9, 1997.

Setright, Ciabotti & Longstreet (Victor J. Ciabotti, of counsel), Syracuse, for appellants-respondents.

Donohue, Sabo, Varley & Armstrong (Nathaniel H. Barber, of counsel), Albany, for respondent-appellant.

Felt, Evans, Panzone, Bobrow & Hallak, LLP (John A. Panzone, of counsel), Clinton, for respondents.

Before CARDONA, P.J., and MERCURE, CASEY, SPAIN and CARPINELLO, JJ.

CASEY, Justice.

Cross appeals from an order of the Supreme Court (Tait Jr., J.), entered July 31, 1995 in Madison County, which, inter alia, granted motions by defendants Colgate University and Beta Theta Pi for summary judgment dismissing the complaint against them and partially granted the motion of defendant Alumni Association of the Colgate Chapter, Beta Theta of Beta Theta Pi Inc. for summary judgment dismissing the complaint against it.

Plaintiff Jason Rothbard (hereinafter plaintiff) sustained serious injuries when he fell from the second floor of defendant Beta Theta Pi fraternity house at defendant Colgate University in the Village of Hamilton, Madison County. At the time of his fall, plaintiff was a sophomore at the university and a member of the fraternity. Plaintiff's room at the fraternity house had a window which was centered over the curved portico above the front entrance to the fraternity house. There were no witnesses to plaintiff's fall, which occurred at approximately 5:30 A.M., and plaintiff has no memory of the fall. Plaintiff was found lying on the ground near the entrance to the fraternity house, unconscious and bleeding profusely. Upon plaintiff's admission to the hospital, his blood alcohol level was measured at 0.18%.

In this action, plaintiff and his father seek to recover damages for the personal injuries sustained by plaintiff in his fall. In addition to the university, three entities related to the particular fraternity were named as defendants: the local chapter of the fraternity, the national fraternity and the alumni organization that owned the fraternity house. After issue was joined, defendants moved for summary judgment dismissing the complaint and all cross claims. Plaintiffs cross-moved for certain relief, including permission to amend their bill of particulars to certain defendants. Supreme Court granted summary judgment to the university and the local chapter of the fraternity, and the complaint was also apparently dismissed as to the national fraternity. The owner of the fraternity house was granted summary judgment except insofar as plaintiffs' complaint alleges that the owner was negligent in maintaining a defective or dangerous condition in plaintiff's room at the fraternity house. Supreme Court also granted plaintiffs' cross motion. Plaintiffs appeal from the dismissal of the complaint as against the university and the partial dismissal of the complaint as to the owner of the fraternity house. Plaintiffs do not contest the dismissal of the complaint as against the local chapter or the national fraternity. The owner of the fraternity house cross-appeals, claiming that the complaint should be dismissed in its entirety.

As to the university's motion for summary judgment, it is clear from the affidavit in opposition to the motion that plaintiffs' negligence claim against the university is based upon allegations that the university breached its duty to control or supervise the conduct or behavior of students in fraternity houses, including plaintiff. According to plaintiffs, the university assumed the duty when, in the student handbook, it asserted the authority to control the behavior of students in fraternity houses. In particular, plaintiffs point to provisions of the handbook which provide that all roofs and porticos are "off limits" for all students and that no one under the age of 21 shall be served or consume alcohol. Plaintiffs contend that the university knew or should have known that both provisions were routinely violated by students at fraternity houses. ¹ Plaintiffs claim that the university's failure to enforce its own rules should result in the imposition of liability for the injuries sustained by plaintiff when he fell from a portico. We find no merit in plaintiffs' claim.

"[C]olleges today in general have no legal duty to shield their students from the dangerous activity of other students" (Eiseman v. State of New York, 70 N.Y.2d 175, 190, 518 N.Y.S.2d 608, 511 N.E.2d 1128). A fortiori, colleges today in general have no legal duty to shield their students from their own dangerous activity which creates a risk of harm to themselves (see, Talbot v. New York Inst. of Technology, 225 A.D.2d 611, 639 N.Y.S.2d 135). This is not a case where the university encouraged its students to participate in an activity and took affirmative steps to supervise the activity (see, Hores v. Sargent, 230 A.D.2d 712, 646 N.Y.S.2d 165). To the contrary, the university expressly provided in its student handbook that certain conduct by its students was prohibited. We reject plaintiffs' contention that in so doing the university voluntarily assumed the duty to take affirmative steps to supervise plaintiff and prevent him from engaging in the prohibited...