Nero v. Kansas State University , 253 Kan. 567 ( 1993 )

The opinion was delivered by

Abbott, J.:

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. ¶ 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 recognized:

“It is the general rule that an actor has no duty to control the conduct of a third person to prevent that person from causing harm to others unless a ‘special relationship’ exists between ■ the actor and the third party or the actor and the injured party. Restatement (Second) of Torts § 315 (1963).”

See McGee v. Chalfant, 248 Kan. 434, 438, 806 P.2d 980 (1991); Washington v. State, 17 Kan. App. 2d 518, Syl ¶ 1, 839 P.2d 555, rev. denied 252 Kan. 1095 (1992).

As far back as 1983, this court, speaking through Justice McFarland, stated:

“Although this court has never formally adopted ... § 315, . . . we discussed the concept of special relationship in Robertson v. City of Topeka, 231 Kan. 358, 644 P.2d 458 (1982). . . . We observed a special relationship or specific duty has been found when one creates a foreseeable peril, not readily discoverable, and fails to warn. 231 Kan. at 364.” Durflinger v. Artiles, 234 Kan. 484, 499, 673 P.2d 86 (1983).

The Restatement (Second) of Torts § 315 (1964), provides:

“There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless

(a) a special relation exists between the actor and the third person which 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 which gives to the other a right to protection.”

Comment c to § 315 explains:

The relations between the actor and a third person which require the actor to control the third person’s conduct are stated in §§ 316-319. The relations between the actor and the other which require the actor to control the conduct of third persons for the protection of the other are stated in §§ 314A and 320.”

“A special relationship may exist between parent and child, master and servant, the possessor of land and licensees, persons in charge of one with dangerous propensities, and persons with custody of another. Restatement (Second) of Torts §§ 316-320 (1964).” McGee, 248 Kan. at 438.

Although Nero never explicitly argued the distinctive nature of the university-student relationship imposed a duty of care upon KSU, our discussion commences with this argument because the converse view formed the basis of the trial court’s grant of summary judgment in favor of KSU. The trial court ruled the university-student relationship in and of itself was not a special relationship within the meaning of § 315 and, upon that basis, refused to impose a duty upon KSU to protect Nero from Davenport’s actions. The court reasoned that a plaintiff cannot predicate a university’s liability on “the outmoded doctrine of in loco parentis” and that in general universities today “have no legal duty to shield their students from the dangerous activities of other students. ’ Finding no Kansas cases on point, the trial court relied upon cases from other jurisdictions. See Bradshaw v. Rawlings, 612 F.2d 135 (3d Cir. 1979), cert, denied 446 U.S. 909 (1980); Tanja H. v. Regents of the University of California, 228 Cal. App. 3d 434, 278 Cal. Rptr. 918 (1991); Crow v. State of California, 222 Cal. App. 3d 192, 271 Cal. Rptr. 349 (1990); Baldwin v. Zoradi, 123 Cal. App. 3d 275, 176 Cal. Rptr. 809 (1981); Eiseman v. State of New York, 70 N.Y.2d 175, 518 N.Y.S.2d 608, 511 N.E.2d 1128 (1987). With regard to the doctrine of in loco parentis, the weight of authority is in agreement with the trial court’s ruling. See Furek v. University of Delaware, 594 A.2d 506, 519-20 (Del. 1991). For a general discussion of the in loco parentis doctrine, see Szablewicz & Gibbs, Colleges’ Increasing Exposure to Liability: The New In Loco Parentis, 16 J. L. & Educ. 453 (1987); Note, The Doctrine of In Loco Parentis, Tort Liability and the Student-College Relationship, 65 Ind. L.J. 471, 472 (1990).

The trial court found no Kansas cases that considered “whether colleges and universities have a duty to protect students living in their residence halls from sexual assaults by other students living in the halls” or “whether colleges and universities have a duty to warn other students when an individual living in its residence halls has been charged with sexual assault or any other crime.” None of the cases the trial court cited are exactly on point, and all can be distinguished factually. The same can be said for the cases Nero cites.

Bradshaw, 612 F.2d 135, concerned whether a college could be held liable for injuries a student, Donald Bradshaw, sustained when riding in a car driven by a fellow student who had become intoxicated at the annual sophomore class picnic. A faculty sponsor helped plan the picnic and cosigned a check for class funds used to purchase the beer. The majority of students attending the picnic were under the legal drinking age of 21.

The Third Circuit rejected the in loco parentis doctrine, reasoning:

“Our beginning point is a recognition that the modern American college is not an insurer of the safety of its students. Whatever may have been its responsibility in an earlier era, the authoritarian role of today’s college administrations has been notably diluted in recent decades. Trustees, administrators, and faculties have been required to yield to the expanding rights and privileges of their students. . . . College students today are no longer minors; they are now regarded as adults in almost every phase of community life. . . . There was a time when college administrators and faculties assumed a role in loco parentis. Students were committed to their charge because, the students were considered minors. A special relationship was created between college and student that imposed a duty on the college to exercise control over student conduct and, reciprocally, gave the students certain rights of protection by' the college. The campus revolutions of the late sixties and early* seventies were a direct attack by the students on rigid controls by the colleges and were an all-pervasive affirmative demand for more student rights. . . . Regulation by the college of student life on and off campus has become limited. Adult students now demand and receive expanded rights of privacy in their college life including, for example, liberal; if not unlimited, [parietal] visiting hours. College administrators no longer control the broad arena of, general morals. At one time, exercising their rights and duties in loco parentis, colleges were able to impose strict regulations. But today students vigorously claim the right to define and regulate their own lives. Especially have they demanded and received satisfaction of their interest in self-assertion in both physical and mental activities, and have vindicated what may be called the interest in freedom of the individual will. . . .

“Thus, for the purposes of examining fundamental relationships that underlié tort liability, the competing interests of the student and of the institution of higher learning are much different" today than they were in the past. At the risk of oversimplification, the change has occurred because society considers the modern college student an adult, not a.child of tender years.” 612 F.2d at 138-40.

The court acknowledged a special relationship could impose a duty upon the college. 612 F.2d at 141.

Bradshaw claimed the college’s regulation that imposed sanctions on students who used alcohol created a custodial relationship between the college and its students. The Third Circuit disagreed, reasoning that the college’s regulation simply “tracked” state law. Bradshaw’s final argument was that because the college knew students would drink at the picnic in violation of state law and the college’s regulation and because the college knew the students’ conduct created a high risk of harm to third parties, the college had a duty either to control the students’ conduct or to protect third parties, such as Bradshaw, from potential harm. The Third Circuit concluded that Bradshaw failed to prove either duty. The appellate court also noted it would be an impossible burden for the college' to control students’ beer drinking off campus, particularly in light of the fact the majority of the college’s students were from a neighboring state in which the legal drinking age was 18.- 612 F.2d at 141-42.

In Baldwin, 123 Cal. App. 3d 275, after a dorm party at which underage college students consumed alcohol in violation of state law and university policy, a high-speed car contest ensued that resulted in two or more of the cars colliding. The plaintiff, who was a passenger in one of the cars and was severely injured, sued the university. She claimed a special relationship existed between the university and herself that imposed a duty upon the university to prevent the injuries she received.

A California Court of Appeals panel noted: “When the avoidance of foreseeable harm requires a defendant to control the conduct of another person, or to warn of such conduct, the common law as a general rule imposes liability only if the defendant bears some special relationship to the dangerous person or potential victim.” 123 Cal. App. 3d at 282-83. The court commented that California has recognized “a duty of reasonable care when the defendant stood in a special relationship to both the victim and the person whose conduct created the danger.” 123 Cal. App. 3d at 283. According to the court, foreseeability is central to determining whether a defendant owes a duty of reasonable care. The plaintiff had alleged in her complaint “that the negligent failure to prevent on-campus drinking on the date in question made it reasonably foreseeable that the students would follow the drinking by the driving of their cars in a negligent manner with plaintiff’s resultant injuries.” 123 Cal. App. 3d at 285-86.

“Foreseeability is stated to be a question of fact for the jury [citation omitted], but the matter does not end there. “ \ . . [RJeasonable foreseeability does not turn on whether the particular [defendant] as an individual would have in actuality foreseen the exact accident and loss; it contemplates that courts, on a case-to-case basis, analyzing all the circumstances, will decide what the ordinary man under such circumstances should reasonably have foreseen. The courts thus mark out the areas of liability, excluding the remote and unexpected. . . .” ’ [Citations omitted.] Even though a harm may be foreseeable, as it is alleged to be here, a concomitant duty to prevent the harm does not always follow. ‘Rather, the question is whether the risk of harm is sufficiently high and the amount of activity needed to protect against harm sufficiently low to bring the duty into existence, . . .’ [Citation omitted.]” 123 Cal. App. 3d at 286.

The Court of Appeals panel applied the following factors to determine whether a duty was owed to third persons:

“ ‘the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost and prevalence of insurance for the risk involved.’ [Citation omitted.]” 123 Cal. App. 3d at 286.

The Baldwin court then concluded application of these factors to the facts of the case did not support establishing a duty and finding liability. The court noted “a lack of a close connection between the failure of the [university] to control on-campus drinking and the speed contest.” 123 Cal. App. 3d at 287. With regard to the moral blame attached to the university’s conduct, the court relied upon the Bradshaw court’s discussion quoted above. In discussing community consequences, the Baldwin court commented:

“The transfer of prerogatives and rights from college administrators to the students is salubrious when seen in the context of a proper goal of post-secondary education—the maturation of the students. Only by giving them responsibilities can students grow into responsible adulthood. Although the alleged lack of supervision had a disastrous result to this plaintiff, the overall policy of stimulating student growth is in the public interest.” 123 Cal. App. 3d at 291.

In Crow, 222 Cal. App. 3d 192, the plaintiff attended a keg party at one of the residence halls on campus and was assaulted by a fellow student, who previously had assaulted a residence, hall advisor while intoxicated. The plaintiff filed suit against the university, claiming the university failed to supervise the keg party adequately and failed to take action to prevent the assault against him. A California Court of Appeals panel noted that the common law “ ‘generally does not impose a duty upon a defendant to control the conduct of another, or to warn of such conduct, unless the defendant stands in some special relationship either to the person whose conduct needs to be controlled, or to the foreseeable victim of such conduct.’ [Citations omitted.]” 222 Cal. App. 3d at 208. The court then rejected the plaintiff’s “claim of a university/student special relationship,” relying upon the Baldwin court’s discussion of the decline of the in loco parentis doctrine. 222 Cal. App. 3d at 208-09.

In Tanja H., 228 Cal. App. 3d 434, a female university student was raped by four male students after a party in a residence hall in which students under the legal drinking age had been consuming alcohol. The university had regulations prohibiting the consumption of alcohol by underage students in the residence halls, and students signed statements agreeing to abide by those regulations. The female student filed suit against the four male students and the university.

After discussing Baldwin and Crow, a California Court of Appeals panel concluded the issue was the same as presented in those cases: “Should a duty be imposed which would make colleges liable for damages caused by third parties, unless colleges impose onerous conditions on the freedom and privacy of resident students—which restrictions are incompatible with a recognition that students are now generally responsible for their own actions and welfare?” 228 Cal. App. 3d at 438. The court noted “[a] university is not liable as an insurer for the crimes of its students” or “for the sometimes disastrous consequences which result from combining young students, alcohol, and dangerous or violent impulses.” 228 Cal. App. 3d at 435, 437. It was reasoned that “courts have not been willing to require college administrators to reinstitute curfews, bed checks, dormitory searches, hall monitors, chaperons, and the other concomitant measures which would be necessary in order to suppress the use of intoxicants and protect students from each other.” 228 Cal. App. 3d at 438. The Court of Appeals panel determined no duty should be imposed and concluded there was good reason not to shift moral and legal responsibility from the student perpetrators to universities. The court also rejected the plaintiff’s premises liability theory, finding there was not a sufficient nexus between the lack of illumination in the stairway and the assault upon her. 228 Cal. App. 3d at 439.

In Eiseman, 70 N.Y.2d 175, Larry Campbell enrolled in a special state college program for the disadvantaged after being conditionally released from prison, and he , subsequently raped and murdered a fellow student off campus. The New York Court of Appeals began its analysis by noting “the imposition of duty presents a question of law for the courts [citations omitted], resting on policy considerations of whether plaintiff’s interests are entitled to legal protection against defendant’s conduct [citations omitted].” 70 N.Y.2d at 189-90. The court rejected the lower courts’ view that the college’s participation in the special program gave rise to a duty of heightened admissions inquiry or to restrict Campbell’s campus activities. The Court of Appeals agreed with the lower courts’ conclusion that liability cannot be based on the in loco parentis doctrine because “colleges today in general have no legal duty to shield their students from the dangerous activity of other students.” 70 N.Y.2d at 190. The court concluded that to impose a duty of heightened admissions inquiry “would run counter to the legislative policy embodied by the [special] program as well as the laws and policies promoting the reintegration of former convicts into society.” 70 N.Y.2d at 191. With regard to restricting Campbell’s activities on campus, thé highest court in New York commented: “Publicly branding him on campus as a former convict and former drug addict would have run up against the same laws and policies that prevented discriminating against him.” '70 N.Y.2d at 191. The court then noted other students, including the victim, knew of Campbell’s criminal record. The Court of Appeals reasoned that to impose liability upon the college “for failing to screen out or detect potential danger signals in Campbell would hold the college to a higher duty than society’s experts in making such predictions—the correction and parole officers,' who in the present case have been found to have acted without negligence.” 70 N.Y.2d at 191.

Nero cites two cases in which courts have held that liability may be imposed upon a university based, at least in part, upon the distinctive university-student relationship. See Furek v. University of Delaware, 594 A.2d 506 (Del. 1991); Mullins v. Pine Manor College, 389 Mass. 47, 449 N.E.2d 331 (1983).

In Furek, a fraternity pledge was burned when a lye-based liquid oven cleaner was poured over his back and neck during a fraternity hazing activity. The pledge brought suit against the university and others. On appeal, the Supreme Court of Delaware considered whether the university-student relationship imposed a duty upon the university “to make and enforce policies which might protect the student from harm occasioned by the acts of third parties who function under the auspices of the university.” 594 A.2d at 516. The court discussed the uniqueness of this relationship: . . .

“While its primary function is to foster intellectual development through an academic curriculum, the institution is involved in all aspects of student life. Through its providing of food, housing, security, and a range of extracurricular activities the modem university provides a setting in which every aspect of student life is, to some degree; university guidéd. This attempt at control, however, is directed toward a group whose members are adults in the contemplation of law and thus free agents in many aspects of their lives and life styles.” 594 A.2d at 516.

The Furek court was not convinced the university-student relationship did not impose at least a limited duty upon the university to protect students from their fellow students’ actions. The court was critical of the policy analysis in Bradshaw and subsequent cases following Bradshaw, noting these cases provided “no empirical support for the proposition that supervision is inversely related to the maturation of college students.” 594 A.2d at 518. The Furek court decided it was “equally reasonable to conclude that university supervision of potentially dangerous student activities is not fundamentally at odds with the nature of the parties’ relationship, particularly if such supervision advances the health and safety of at least some students.” 594 A.2d at 518. The court concluded:

“The university is not an insurer of the safety of its students nor a policeman of student morality, nonetheless, it 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 enjoyed by the modern university student, the duty of the university to regulate and supervise should be limited to those instances where it exercises control. Situations arising out of the ownership of land,within the contemplation of § 344, involving student invitees present on the property for the purposes permitted them are within such limitations.” 594 A.2d at 522.

The Furek court also held the university had a duty to protect the student under a landowner-invitee analysis. 594 A.2d at 520-21.

In Mullins, 389 Mass. 47, after being raped by. an unidentified, assailant on the campus grounds, the plaintiff, a freshman, sued the college, which required all freshmen to live on campus. The Supreme Judicial Court of Massachusetts held that colleges owed resident students a duty of protection against a third party’s criminal acts, based upon two principles of law.

One principié was identified as “ ‘existing social values and customs,’ ” in that “colleges of ordinary prudence customarily exercise care to protect the well-being of their resident students, including seeking to protect them against the criminal acts of third parties.” 389 Mass, at 51. The court concluded the “college community itself” recognized this duty in view of the fact that standards had been established setting forth the safety precautions a college should take. The court also reasoned that college campuses were breeding grounds for criminal behavior because of the number of young people, particularly young women, on these campuses and that colleges were in the best position to ensure their students’ safety. The court acknowledged the decline of the in loco parentis doctrine, but maintained “[t]he fact that a college need not police the morals of its resident students, however, does not entitle it to abandon any effort to ensure their physical safety.” 389 Mass, at 52. Furthermore, according to the court, colleges have helped to foster the expectation in students, parents, and the community at large “that reasonable care will be exercised to protect resident students from foreseeable harm.” 389 Mass, at 52.

The Mullins court identified the second principle as the college’s voluntary undertaking to protect students from the criminal acts of third persons and the students’ reliance upon the college’s undertaking. See Restatement (Second) of Torts § 323 (1964). According to the court, a student’s “threshold” consideration in deciding which college to attend is the college’s security measures. The court also noted that students pay for this service through tuition or dormitory fees. 389 Mass, at 53-54.

We hold the university-student relationship does not in and of itself impose a duty upon universities to protect students from the actions of fellow students or third parties. The in loco parentis doctrine is outmoded and inconsistent with the reality of contemporary collegiate life.

There are, however, other theories under which a university might be held liable. See, e.g., Note, The Liability and Responsibility of Institutions of Higher Education for the On-Campus Victimization of Students, 16 J.C. & U.L. 119, 123-30 (1989). See generally Bazyler, The Duty to Provide Adequate Protection: Landowners’ Liability for Failure to Protect Patrons from Criminal Attack, 21 Ariz. L. Rev. 727, 745 (1979); Browder, The Taming of a Duty—The Tort Liability of Landlords, 32 Def. L. J. 497, 500, 540-50 (1983); Selvin, Landlord Tort Liability for Criminal Attacks on Tenants: Developments Since Kline, 9 Real Estate L.J. 311 (1981); Note, Expanding the Scope of the Implied Warranty of Habitability: A Landlord’s Duty to Protect Tenants from Foreseeable Criminal Activity, 33 Vand. L. Rev. 1493, 1503-07 (1980); Annot., 1 A.L.R.4th 1099 (discussion of a university’s liability for failure to protect a student from crime); Annot., 43 A.L.R.3d 331, 348-53 (discussion of a landlord’s duty to protect against crime).

Nero raises other theories. She initially claims the trial court erred in not addressing whether the evidence established a special relationship, other than one based upon the doctrine of in loco parentis, between KSU and Davenport or between KSU and herself.

The plaintiff focuses upon the relationship between KSU and Davenport. She claims KSU took charge of Davenport and was under a duty to exercise reasonable care to control him and prevent him from physically harming others because the university knew or should have known he was likely to cause such harm. The legal basis for her argument is Restatement (Second) of Torts § 315(a), 319 (1964).

Under § 315(a), a special relationship must exist between KSU and Davenport that imposes a duty upon KSU to control Davenport’s conduct. See McGee v. Chalfant, 248 Kan. 434, 438, 806 P.2d 980 (1991); Cansler v. State, 234 Kan. 554, 560, 675 P.2d 57 (1984); Washington v. State, 17 Kan. App. 2d 518, Syl. ¶ 1, 839 P.2d 555, rev. denied 252 Kan. 1095 (1992). Nero alleges that special relationship is based upon § 319, the duty of those in charge of a person having dangerous propensities. The fact that KSU changed Davenport’s residence hall assignment, with his agreement, because of the rape accusation does not mean the university was “in charge” or “took charge” of Davenport within the meaning of § 319. This is exemplified by the illustrations following that section. One illustration involves a private hospital for contagious diseases permitting a patient who has infectious scarlet fever to leave the hospital with the. assurance he is recovered and-the "hospital negligently allowing another infectious patient to escape. The other illustration concerns a private sanitarium for the insane negligently allowing a homicidal maniac to escape.

Cases in which this court has applied § 319 typically have involved-prisoners. See Cansler, 234 Kan. 554, Syl. ¶¶ 2, 3 (the State has a duty to confine inmates securely and, if inmates escape, to notify area residents and area law enforcement); Washington, 17 Kan. App. 2d 518, Syl. ¶ 2 (“Prison officials owe a duty of ordinary or reasonable care to safeguard a prisoner in their custody or control from attack by other prisoners.”). C.J.W. v. State, 253 Kan. 1, 853 P.2d 4 (1993), involved the alleged assault and sexual molestation of a 12-year-old child by a 17-year-old bully, both of whom were in the custody of juvenile officials at the time of the alleged attack. SRS was aware of the older child’s “history of violent and sexually deviant acts.” 253 Kan. at 12. This court applied §§ 315, 319, and 321 of the Restatement, holding the State had a duty, to warn the juvenile officials of the older child’s propensity toward violence and to protect children who are taken into custody from others, including other children, in custody. In Beck v. Kansas Adult Authority, 241 Kan. 13, 735 P.2d 222 (1987), Bradley Boan, “a disturbed former prisoner . . . and a former mental patient,” walked into the emergency room at the KU Medical Center and fired three shots, killing two people. This court held that the Medical Center did not have a common-law duty to warn because “the Medical Center did not take charge of Boan and did not have custody or control over him at any time after his release from the penitentiary or at the time he entered the Medical Center with shotgun in hánd.” 241 Kan. at'23. Here, KSU did not have the type of control or custody over Davenport contemplated by § 315.

The trial court found Nero’s reliance upon Cansler v. State, 234 Kan. 554, misplaced in that “the duty of those in charge of persons with dangerous propensities has no application to the University residence hall setting.” KSU urges this court to agree, stating the relationship between a university and its students is not analogous to the relationship between a prison and its inmates.

We believe the issue before us to be more basic. The trial court granted summary judgment. The law concerning the granting of- summary judgment is well defined and has been stated in hundreds of cases; thus, we need not set it forth again. KSU is a landlord furnishing housing to its students in competition with private landlords. It owes a duty of reasonable care to its tenants. KSU has discretion whether to furnish housing to students. Once that discretionary decision is made, the university has a duty to use reasonable care to protect its tenants. Generally, whether a landlord has breached the duty of reasonable care to a tenant is a question of fact.

“Whether risk of harm is reasonably foreseeable is a question to be determined by the trier of fact. Only when reasonable persons could arrive at but one conclusion may the court determine the question as a matter of law. [Citation omitted.]” Kansas State Bank & Tr. Co. v. Specialized Transportation Services, Inc., 249 Kan. 348, 362, 819 P.2d 587 (1991).

“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 where the proprietor has reason to anticipate such an assault and fails to exercise reasonable care to forestall or prevent the same.”

“The duty of a proprietor of a tavern or inn to protect his patrons from injury does not arise until the impending danger becomes apparent to him, or the circumstances are such that a careful and prudent person would be put on notice of the potential danger.” Gould v. Taco Bell, 239 Kan. 564, Syl. ¶¶ 1, 3, 722 P.2d 511 (1986).

Other jurisdictions have applied the landowner-invitee analysis to determine whether a university has a duty to protect students from the criminal actions of third parties. See Peterson v. San Francisco Community College Dist., 36 Cal. 3d 799, 205 Cal. Rptr. 842, 685 P.2d 1193 (1984); Furek v. University of Delaware, 594 A.2d 506, 520-21 (Del. 1991); Relyea v. State, 385 So. 2d 1378 (Fla. Dist. App. 1980), disapproved on other grounds Avallone v. Bd. of County Com’rs Citrus Cty., 493 So. 2d 1002 (Fla. 1986); Setrin v. Glassboro State College, 136 N.J. Super. 329, 346 A.2d 102 (1975); Brown v. N.C. Wesleyan College, 65 N.C. App. 579, 309 S.E.2d 701 (1983). In analyzing the issue, all but the Relyea court relied upon Restatement (Second) of Torts § 344 (1964), which provides:

“A possessor 'of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to

(a) discover that such acts are being done or are likely to be done, or

(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.”

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. Relyea, 385 So. 2d at 1382-83. A university owes student tenants the same duty to exercise due care for their protection as a private landowner owes its tenants. See Peterson, 36 Cal. 3d at 807.

We emphasize that a university is not an insurer of the safety of its students. Nonetheless, 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.

Here, KSU knew of the alleged rape and had taken reasonable steps under the circumstances—i.e., it removed Davenport from the coed dormitory and moved him across campus and into an all-male dormitory. The university requested that Davenport stay away from the coed dorm and the food service building. School was ending, and Davenport was allowed to finish the semester.

When Davenport enrolled for intersession, KSU had the option of refusing to rent space to him. Instead, the university placed him in a coed dorm with the plaintiff, who is from a different state and presumably had no knowledge of the pending rape charge against Davenport. Nero knew Davenport was a fellow student living in the same dormitory, which may have given her a false sense of security. She ended up alone with Davenport in a public area. Had Davenport been a stranger and not living in the same dormitory, Nero might have been more likely to protect herself by immediately leaving the area.

We are of the opinion reasonable people would disagree whether Davenport’s attack on Nero was foreseeable. Thus, that issue must be resolved by the trier of facts, and the trial court erred in granting summary judgment.

KSU next argues it is immune from liability under the discretionary function exception to the Kansas Tort Claims. Act (KTCA), K.S.A. 75-6101 et seq.

Under the KTCA, 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. If KSU fails, to rheet this burden, the general rule of liability applies. See C.J.W. v. State, 253 Kan. 1, Syl. ¶ 6; Kansas State Bank & Tr. Co. v. Specialized Transportation Services, Inc., 249 Kan. at 364. K.S.A. 75-6103(a) sets forth the general rule of liability:

. “Subject to the limitations of this act, each governmental entity shall be liable for damages caused by the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment under circumstances where the governmental entity, if a private person, would be liable under the laws of this state.”

The discretionary function exception, upon which KSU relies, is found át K.S.A. 1992 Supp. 75-6104(e) and provides:

“A governmental entity or an employee acting within the scope of the employee’s employment shall not be liable for damages resulting from:

(e) any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee, whether or not the discretion is abused and regardless of the level of discretion involved.”

In determining whether KSU’s decision was within the discretionary function exception, our focus is on “the nature and quality of the discretion exercised.” It is not enough that the governmental entity exercised its judgment. Some element of exercising judgment is involved in every case. The status of the employee exercising the discretion is not determinative. If there is a clearly defined mandatory duty or guideline, the discretionary function exception is not applicable. Collins v. Board of Douglas County Comm’rs, 249 Kan. 712, 721, 822 P.2d 1042 (1991); Kansas State Bank & Tr. Co., 249 Kan. at 365.

Nero maintains the university’s decision was ministerial based upon the deposition testimony of Dr. Pat Bosco, Associate Vice-President for Institutional Advancement. When asked who made the decision to move Davenport into Goodnow Hall, Dr,- Bosco responded: “It would be our housing people, it would be purely an administrative move.” He further explained that every year everyone attending summer school is consolidated into one residence hall and the other halls are closed. The plaintiff, equates administrative with ministerial.

The parties disagree upon the proper time frame , for determining if KSU is entitled to immunity. The plaintiff asks this court to focus upon, only the university’s decision to allow Davenport to reside in Goodnow Hall. KSU maintains we should examine the totality of its decisions after J.N. accused Davenport óf rape. The university acknowledges “the closing of all but one residence hall and the consolidation ■ of all intersession and summer school students in Goodnow Hall was indeed ‘administrative,’ ” but argues “it had nothing to do with the University’s response to [J.N.’s] accusation of rape against Ramon Davenport.” The trial court focused upon the nature and quality of KSU’s judgments after J.N. accused Davenport of rape.

In' Cansler v. State, 234 Kan. 554, 570, 675 P.2d 57 (1984), we held the State had a duty (arhong other duties) to warn that a dangerous inmate had escaped. This court held the duty to warn is imposed by law and is ministerial, not discretionary. The issue of whether the State exercised reasonable care in doing so was held to be a question of fact.

In Allen v. Kansas Dept. of S.R.S., 24Ó Kan. 620, 731 P.2d 314 (1987), this court held 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. 75-6104(d) for negligence in carrying out a ministerial act in furtherance of the task. Allen is consistent with Indian Towing Co. v. United States, 350 U.S. 61, 100 L. Ed. 48, 76 S. Ct. 122 (1955), in which the United States Supreme Court held that whether to establish a lighthouse was discretionary but, once established, there was a duty to maintain it.

Draskowich v. City of Kansas City, 242 Kan. 734, 740-41, 750 P.2d 411 (1988), addressed the general duty under the KCTA to maintain highways in a reasonably safe condition: This court determined that if the City of Kansas City knew there was ice on the road (not caused by the weather) making the road dangerous for vehicles to travel and failed to warn or take other steps reasonably necessary for the protection of those using the road, the question of negligence was an issue of fact to be determined by the trier of fact.

The discretionary function exception was reviewed in Dougan v. Rossville Drainage Dist., 243 Kan. 315, 757 P.2d 272 (1988). In Dougan, Chief Justice Prager, now retired, speaking for the court, said:

“Simply stated, our more recent cases hold that the discretionary function exception is not applicable in those situations where a legal duty exists, either by case law or by statute, which the governmental agency is required to follow. The governmental agency cannot properly claim that its challenged action falls within the discretionary function exception where the action taken violated a legal duty.

“In the later Kansas cases, the court has relied upon the presence or absence of a legal duty in deciding whether the discretionary function exception was applicable. Beck v. Kansas Adult Authority, 241 Kan. [13, 30, 33-34, 735 P.2d 222 (1987)]; Allen v. Kansas Dept. of S.R.S., 240 Kan. 620, 731 P.2d 314 (1987); and Fudge v. City of Kansas City, 239 Kan. 369, 720 P.2d 1093 (1986). The language in Allen makes it clear that illegal acts are outside the scope of the discretionary function exception and that the negligent performance of a ministerial act is not within the exception.

“Based upon the rationale set forth above, we have concluded that the trial court properly held in this case that the discretionary function exception provided for in K.S.A. 75-6104(d) does not apply to relieve the Rossville Drainage District from liability in this case. This is so because, under the Kansas Tort Claims Act, a governmental agency does not have a discretionary right to violate a legal duty and avoid liability. To so hold would completely nullify the purpose of the Kansas Tort Claims Act.” 243 Kan. at 322-25.

We recently reaffirmed the above in C.J.W. v. State, 253 Kan. 1, Syl. ¶ 7, in which the court stated:

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

We aré satisfied the discretionary function exception to the Kansas Tort Claims Act does not apply in this case.

We conclude that KSU exercised its discretion to build, maintain, and operate housing units. Once that discretionary decision was made, KSU 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. A factual issue remains whether KSU used reasonable care in carrying out its legal duty to Shana Nero when it placed Ramon Davenport in a coed housing unit with her. A question also exists concerning a failure to warn her and a'failure to institute adequate security measures to protect female students in the same housing unit based upon KSU’s knowledge of the reported sexual attack by Ramon Davenport some three weeks earlier. Whether the second attack was foreseeable by KSU and whether KSU took adequate steps under the circumstances to prevent the second attack are questions of fact, and the trial court erred in granting summary judgment.

Reversed and remanded for trial.