Smith v. Day, s. 86-385

• Decision Date: 20 November 1987
• Docket Number: 86-386,Nos. 86-385,s. 86-385
• Citation: 538 A.2d 157,148 Vt. 595
• Court: Vermont Supreme Court
• Parties: , 45 Ed. Law Rep. 197 Hubert L. SMITH v. Kenneth R. DAY and Norwich University. John R. LUMAN v. Kenneth R. DAY and Norwich University.

Page 157

538 A.2d 157

148 Vt. 595, 45 Ed. Law Rep. 197

Hubert L. SMITH v. Kenneth R. DAY and Norwich University.

John R. LUMAN v. Kenneth R. DAY and Norwich University.

Nos. 86-385, 86-386.

Supreme Court of Vermont.

Nov. 20, 1987.

Parker, Lamb & Ankuda, P.C., Springfield, and Freeley and Freeley, and Malone and Naumes, Boston, Mass., for plaintiffs-appellants.

Ritchie E. Berger and Edward D. Sutton of Dinse, Erdmann & Clapp, Burlington, for defendant-appellee Norwich University.

Before PECK, GIBSON, DOOLEY and MAHADY, JJ., and BARNEY, C.J. (Ret.), Specially Assigned.

GIBSON, Justice.

These cases come before this Court on appeals by plaintiffs from the trial court's granting of summary judgments in favor of defendant Norwich University. We affirm.

Plaintiffs are engineers for the Central Vermont Railway. They were wounded in separate shooting incidents on December 17, 1981, and on March 10, 1982. Defendant Kenneth Day, a student at Norwich University, was apprehended by the police shortly after the second shooting incident. Day pled guilty to one count of aggravated assault and was incarcerated for a period of one year.

On December 11, 1984, plaintiffs filed civil actions against both Day and Norwich University, seeking damages for injuries suffered as a consequence of the shooting incidents. On June 11, 1986, the Washington Superior Court entered judgment in favor of defendant Norwich University on its motions for summary judgment, finding that (1) Norwich University owed no duty of care to plaintiffs, (2) even if such a duty did exist, the breach of the alleged duty was not the proximate cause of plaintiffs' injuries, and (3) the doctrine of strict liability was inapplicable to the circumstances of the case.

Plaintiffs appealed, alleging error by the trial court in granting the summary judgment motions while genuine issues of material fact existed, and that the court erred as a matter of law in finding that Norwich University owed no duty to plaintiffs. At oral argument, plaintiffs abandoned their claim of strict liability. Since we find, as a matter of law, that Norwich University owed no duty of care to plaintiffs, we need not reach plaintiffs' other contention.

In order to succeed on a motion for summary judgment, the moving party must satisfy a two-part test: first, no genuine issue of material fact must exist between the parties, and second, there must be a valid legal theory which entitles the moving party to judgment as a matter of law. V.R.C.P. 56(c); Gore v. Green Mountain Lakes, Inc., 140 Vt. 262, 264, 438 A.2d 373, 374 (1981). The moving party has the burden of proof, and the opposing party must be given the benefit of all reasonable doubts and inferences in determining whether a genuine factual issue exists. Cavanaugh v. Abbott Laboratories, 145 Vt. 516, 520, 496 A.2d 154, 157 (1985). The moving party also bears this burden on appeal. Sykas v. Kearns, 135 Vt. 610, 612, 383 A.2d 621, 623 (1978). When a defendant moves for summary judgment, he satisfies his legal burden by presenting " 'at least one legally sufficient defense that would bar plaintiff's claim.' " Gore, 140 Vt. at 266, 438 A.2d at 375 (quoting 10 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 2734, at 647 (1973)).

The first prerequisite in any negligence proceeding must be to establish the existence of a legally cognizable duty. ¹ "A duty, in negligence cases, may be defined as an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another." W. Prosser & W. Keeton, The Law of Torts § 53, at 356 (5th ed. 1984). A legal duty may arise in a broad range of situations. See, e.g., Duty to Aid the Endangered Act, 12 V.S.A. § 519(a) ("A person who knows that another is exposed to grave physical harm shall ... give reasonable assistance to the exposed person...."). Plaintiffs' claims against Norwich University rely on the unrecognized theory that a duty of care extends from a university to third persons harmed by the criminal acts of its students.

This Court recently examined the question of an institution's "duty" to control the actions of others. In Peck v. Counseling Service of Addison County, Inc., 146 Vt. 61, 499 A.2d 422 (1985), we stated that:

Generally, there is no duty to control the conduct of another in order to protect a third person from harm. Restatement (Second) of Torts § 315 (1965). A recognized exception to this general rule arises in the situation "where there is ... a special relationship between two persons which gives the one a definite control over the actions of the other...." Harper & Kime, The Duty to Control the Conduct of Another, 43 Yale L.J. 886, 895 (1934).

Id. at 64-65, 499 A.2d at 425. See generally Developments in Vermont Law, Standard of Care, Duty, and Causation in Failure to Warn Actions Against Mental Health Professionals, 11 Vt.L.Rev. 343 (1986).

Plaintiffs argue that a special relationship existed in this case, because of the degree of control exerted by Norwich University over its students' activities. Plaintiffs particularly stress the importance of the fact that Norwich University has numerous rules and regulations which prohibit the illegal conduct engaged in by Cadet Day. Plaintiffs allege that it was the breakdown in the enforcement of these rules and regulations which proximately caused plaintiffs' injuries. Finally, plaintiffs argue that the degree of control exerted by Norwich University over its students through its stringent rules and regulations resulted in the creation of a duty running from Norwich University to plaintiffs. We disagree.

The fact that Norwich University may exercise a large degree of control over the activities of its students does not, of itself, impose a legal duty upon the university to control the volitional criminal acts of its students. ² See Heller v. Consolidated Rail Corp., 576 F.Supp. 6, 13 (E.D.Pa.1982), aff'd, 720 F.2d 662 (3d Cir.1983) (university owes no special duty to its students to protect them from the volitional acts of other students). Nor does a duty arise due to the existence of the stringent rules and regulations governing student life at Norwich University. ³ The fact remains that Cadet Day's actions were volitional criminal acts for which Norwich University had absolutely no reasonably foreseeable notice. See Peck, 146 Vt. at 67, 499 A.2d at 426 ("duty [exists] to take whatever steps are reasonably necessary to protect the foreseeable victim of that danger.").

Plaintiffs would have us create a new common law duty of care where none has previously existed. We have recently stated that "[o]ur Court should not recognize a new cause of action or enlarge an existing one without first determining whether there is a compelling public policy reason for the change." Langle v. Kurkul, 146 Vt. 513, 519, 510 A.2d 1301, 1305-06 (1986). In the instant case, compelling public policy reasons exist against extending the common law understanding of duty. First, most college students, including defendant Day, are adults and must take full responsibility for their actions. See generally American Future Systems, Inc. v. Pennsylvania State University, 553 F.Supp. 1268, 1282 (M.D.Pa.1983) (principle of in loco parentis does not apply to college students). ⁴ Second, it is unrealistic to expect the modern American...