Univ. of S. Cal. v. Superior Court of Cnty. of L. A.

Decision Date27 November 2018
Docket NumberB288180
Citation241 Cal.Rptr.3d 616,30 Cal.App.5th 429
CourtCalifornia Court of Appeals Court of Appeals
Parties UNIVERSITY OF SOUTHERN CALIFORNIA, Petitioner, v. SUPERIOR COURT OF COUNTY OF LOS ANGELES, Respondent; Carson Barenborg, Real Party in Interest.

Hill, Farrer & Burrill, Dean E. Dennis and Jenner C. Tseng, Los Angeles, for Petitioner.

No appearance for Respondent.

Law Office of Martin N. Buchanan, Martin N. Buchanan, Oceanside; Girardi | Keese and Amanda McClintock, Los Angeles, for Real Party in Interest.

MICON, J.*

Carson Barenborg was dancing on a makeshift raised platform at a fraternity party near the University of Southern California (USC) when another partygoer bumped into her, causing her to fall to the ground and suffer serious injuries. Barenborg, who was not a USC student, sued USC and others for negligence, alleging that the university had a duty to protect her from an unreasonable risk of harm and breached that duty by failing to prevent or shut down the party. The trial court denied USC’s motion for summary judgment. USC filed a petition for a peremptory writ of mandate challenging the denial.

USC contends that it had no duty to protect members of the public from the conduct of a third party at an off-campus fraternity party. We agree and grant the petition.

FACTUAL AND PROCEDURAL BACKGROUND
1. The Incident

Several fraternities and sororities affiliated with USC occupy houses in an area near the USC campus known as Greek Row, including a chapter of Sigma Alpha Epsilon Fraternity.1 On October 10, 2013, the day of a home football game, several fraternities, including Cal. Gamma, held parties on Greek Row where alcohol was served. The street was crowded with partygoers.

USC’s Policy on Alcohol and Other Drugs required fraternities and sororities to obtain prior authorization to serve alcohol at social events. USC’s Social Events Policy prohibited parties after 10 p.m. on evenings preceding school days, and allowed parties only between Fridays at 3:00 p.m. and Sundays at 5:00 p.m. Cal. Gamma’s party on Thursday, October 10, 2013, was unauthorized and violated both of these policies. USC was aware of prior violations of university policy and other misconduct at Cal. Gamma, some involving the use of alcohol, and had recently issued warnings and imposed discipline on the fraternity.

USC’s Department of Public Safety (DPS) employed safety officers who patrolled the USC campus and Greek Row. On October 10, 2013, before Barenborg’s injury, two DPS officers visited Cal. Gamma several times in response to complaints of loud music and public drinking. On each visit, they saw an abundance of alcohol on the property. They asked the person in charge at Cal. Gamma to turn down the music and reminded him that public drinking was not allowed, but they did not shut down the party. The two officers were not aware of USC’s policy prohibiting parties on Thursdays and generally were untrained in the enforcement of USC’s policies governing alcohol use and social events.

Barenborg was a 19-year-old student at Loyola Marymount University at the time of her injury. On October 10, 2013, she visited parties on Greek Row with a group of friends. Barenborg consumed cocaine and five to seven alcoholic beverages before arriving at Cal. Gamma, and she continued drinking alcohol after she arrived there.

The Cal. Gamma party was in the backyard of the fraternity house on and around a basketball court. There were approximately 200 to 250 people at the party. A platform approximately seven feet tall constructed from tables was being used for dancing.

Barenborg and two female friends were stepping up onto the platform where USC student Hollis Barth and another woman were dancing when Barth gave them an unwelcoming look. Just as Barenborg and one of her friends reached the top of the platform, Barth bumped Barenborg and her friend off the platform, they fell to the ground, and Barenborg sustained serious injuries.2

2. The Complaint

Barenborg’s second amended complaint filed in September 2016 alleges a single cause of action for negligence against USC, SAE, and Barth.3 Barenborg alleges that USC’s failure to enforce both its own policies and state and local drinking laws resulted in increased alcohol-related injuries at fraternity parties. She alleges that USC owed members of the public a duty of care to avoid exposing them to an unreasonable risk of harm, and breached that duty by failing to shut down the party on October 10, 2013.

3. The Summary Judgment Motion

USC moved for summary judgment, arguing that it had no duty to protect members of the public from third party conduct and had no special relationship with Barenborg giving rise to a duty of care. USC also argued that it never voluntarily assumed a duty to protect Barenborg and therefore could not be held liable under the negligent undertaking doctrine, among other arguments.4

Barenborg argued in opposition that USC owed her a duty of care because (1) USC had a special relationship with its students and their invitees; (2) USC voluntarily assumed a duty to supervise behavior on and around campus, including at fraternity houses on Greek Row, USC increased the risk of harm by failing to shut down the Cal. Gamma party, and Barenborg relied on USC to ensure a safe environment; and (3) USC had the right to control the Cal. Gamma property and therefore owed a duty of care to Barenborg as a social invitee under principles of premises liability.

The trial court heard USC’s summary judgment motion in November 2017. On January 11, 2018, the court filed a 16-page order denying the motion. The trial court summarized its ruling:

"The Court cannot determine that, as a matter of law, Defendant did not owe Plaintiff a duty of care. There are triable issues of material fact as to the existence of a special relationship between Defendant and Plaintiff. Specifically, evidence before the Court suggests Defendant was aware that alcohol abuse in the Greek System, including SAE, was a problem that caused accidents and injuries, Defendant asserted control over SAE and/or SAE’s ability to have events, Defendant voluntarily assumed a protective duty to Plaintiff by having DPS officers patrol and enforce the policies, and Plaintiff relied on Defendant/DPS to provide her with a safe environment."

4. The Petition for Writ of Mandate

On February 15, 2018, USC filed a petition for a peremptory writ of mandate pursuant to Code of Civil Procedure section 437c, subdivision (m)(1), challenging the denial of its summary judgment motion. 5

We issued an order to show cause. We specifically directed the parties to address, in addition to any other arguments, the California Supreme Court’s analysis in Regents of the University of California v. Superior Court (2018) 4 Cal.5th 607, 230 Cal.Rptr.3d 415, 413 P.3d 656 ( Regents ) regarding a college’s limited duty to protect its students from foreseeable harm, and whether that analysis applies in the present case.6

STANDARD OF REVIEW

" ‘On review of an order granting or denying summary judgment, we examine the facts presented to the trial court and determine their effect as a matter of law.’ [Citation.] We review the entire record, ‘considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained.’ [Citation.] Evidence presented in opposition to summary judgment is liberally construed, with any doubts about the evidence resolved in favor of the party opposing the motion. [Citation.]

"Summary judgment is appropriate only ‘where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law.’ [Citation.] A defendant seeking summary judgment must show that the plaintiff cannot establish at least one element of the cause of action. [Citation.] ... ‘Duty, being a question of law, is particularly amenable to resolution by summary judgment.’ [Citation.]" ( Regents , supra , 4 Cal.5th at p. 618, 230 Cal.Rptr.3d 415, 413 P.3d 656.)

DISCUSSION
1. The Duty of Care and Third Party Conduct

A duty of care is an essential element of a negligence cause of action. ( Regents , supra , 4 Cal.5th at p. 618, 230 Cal.Rptr.3d 415, 413 P.3d 656.) "The determination whether a particular relationship supports a duty of care rests on policy and is a question of law. [Citation.]" ( Id . at p. 620, 230 Cal.Rptr.3d 415, 413 P.3d 656.)

" ‘A judicial conclusion that a duty is present or absent is merely " ‘a shorthand statement ... rather than an aid to analysis. ... "[D]uty," is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.’ " [Citation.] "Courts, however, have invoked the concept of duty to limit generally ‘the otherwise potentially infinite liability which would follow from every negligent act. ...’ " [Citation.]" ( Beacon Residential Community Assn. v. Skidmore, Owings & Merrill LLP (2014) 59 Cal.4th 568, 573, 173 Cal.Rptr.3d 752, 327 P.3d 850.)

As a general rule, each person has a duty to exercise reasonable care to avoid causing injury to others. ( Civ. Code, § 1714, subd. (a) ; Regents , supra , 4 Cal.5th at p. 619, 230 Cal.Rptr.3d 415, 413 P.3d 656 ; Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 771, 122 Cal.Rptr.3d 313, 248 P.3d 1170 ( Cabral ).) However, a person who has not created a peril generally has no duty to take affirmative action to protect against it, and a person generally has no duty to protect another from the conduct of third parties. ( Regents , at p. 619, 230 Cal.Rptr.3d 415, 413 P.3d 656 [" ‘A person who has not created a peril is not liable in tort merely for failure to take affirmative action to assist or protect another unless there is some relationship between them which gives rise to a duty to act’ "]; Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 235, 30 Cal.Rptr.3d 145, 113 P.3d 1159 ( Delgado ) ["as a general...

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