The world, it is a-changin’: CA Supreme Court Adopts Section 40 of 3d. Restatement of Torts

Yesterday, the CA Supreme Court adopted Section 40 of the Restatement (3d) of Torts, which creates a durable special relationship between students and schools. The case is here: http://www.courts.ca.gov/opinions/documents/S230568.PDF

This case is the result of changes to the Restatement of Torts. When the 3rd edition of the Restatement was published (2009 & 2012), I thought it would take 5-8 years before courts began to follow the changes to Section 40, which now states definitively that a special relationship exists between schools and students. That is now starting to happen as more and more states adopt the Restatement. Some do so legislatively, and others court by court, but most states adopt Restatements eventually.

This has been obvious at the pk-12 level for some time, but is now beginning to impact colleges. It stands to reason that other courts in other states will follow, but California is often the vanguard. While the court cites decisions in Florida and Massachusetts that it says have already made similar decisions, they’re not based on Section 40. To my knowledge, this is the first state Supreme Court to explicitly adopt Section 40. Delaware got to the same reasoning before Section 40 in the Furek case, which was widely considered an anomaly, but times change, and the CA Supreme Court did a nice job of tracing that evolution. The outlier will likely soon become the majority rule over the next decade.

The minds at the ALI have determined that this is the direction American law should take, but I think they are reflecting college assumptions of this duty, rather than imposing it. We don’t just educate students, we house them, clothe them, sell them books, feed them, look after their health and wellness, discipline them, use behavioral intervention teams to monitor them, provide security for them, and even build them lazy rivers to float down while sipping cold-pressed juices and fruit smoothies. How can we not be in a special relationship when colleges have become all things to all students?

In fact, that’s what our admission tours promise more than anything else; that college will be your home away from home, and that you’ll find a family in our campus community. Well, families look after each other, and the courts are more and more going to recognize that colleges and universities have to do so with reasonable care. It’s not a return to in loco parentis, but it speaks to the idea that with colleges transforming into small cities and undertaking programmatic behemoths of all kinds, each school must do so with care and attention to the safety and well-being of those in its charge. The “no duty” days are coming to a close, and a new era of special relationships between schools and students, defined by law, is upon us.  

Brett A. Sokolow, Esq.
President, ATIXA

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