[Civ. No. 4821. Court of Appeals of California, Fifth Appellate District. August 31, 1981.]
CYNTHIA BALDWIN, Plaintiff and Appellant, v. STEVEN ZORADI et al., Defendants and Respondents.
(Opinion [123 Cal.App.3d 276]
by Andreen, Acting P. J., with Evans (C. P.), J., and Thompson, J., concurring.) by Andreen, Acting P. J., with Evans (C. P.), J., and Thompson, J., concurring.)
OPINIONANDREEN, Acting P. J.
On February 12, 1977, plaintiff was injured as a result of a collision. Her third amended complaint, consisting of thirteen causes of action, contains five causes of action against defendants Trustees of the California State University and Colleges (Trustees), the governing body and administrative agency of California State University and Colleges, and Jeanne Baumgartner and Steven Zoradi (Baumgartner and Zoradi), dormitory advisors. The university involved is California Polytechnic State University, San Luis Obispo (Cal Poly). A general demurrer [assertion by defendant that although the facts may be true, the defendant should not have to answer them or proceed with the case] was sustained to those five causes of action. She declined to further amend and appeals from the ensuing judgment of dismissal.
[1] On appeal after a sustained demurrer, the court must assume the truth of the factual allegations of the complaint. (Hoyem v. Manhattan Beach City Sch. Dist. (1978) 22 Cal.3d 508, 517 [150 Cal.Rptr. 1, 585 P.2d 851]; Buford v. State of California (1980) 104 Cal.App.3d 811, 815 [164 Cal.Rptr. 264].) [2] The function of a demurrer is to test the legal sufficiency of the challenged pleading by raising questions of law. (Whitcombe v. County of Yolo (1977) 73 Cal.App.3d 698, 702 [141 Cal.Rptr. 189].) [123 Cal.App.3d 279]
The Allegations of the Complaint
The plaintiff alleges: She was a passenger in one of three cars driven by Cal Poly student defendants, whose identities are not material here, that other student defendants aided and abetted the negligent drivers, that all of them are under 21 years of age (some under 18 years of age), and that as a proximate result of negligent activity (engaging in a speed contest) the car in which she was riding collided with one or both of the other cars, causing it to leave the highway and overturn. She emerged from the accident a quadriplegic.
The Trustees were the governing body of Cal Poly and Baumgartner and Zoradi were their employees with duties as student dormitory "advisors and/or monitors."
Students lived in the dorms pursuant to an agreement termed a "license," ... The students thereby had a "special relationship" with the Trustees. Plaintiff, a student living in the dorms pursuant to the "license," had a right to and did rely upon the enforcement of provisions in the license agreement governing student conduct while on campus. The possession and/or consumption of alcoholic beverages is proscribed on the campus, including the dorms, by the terms of the license agreement and by statute.
On the day in question, and on many prior occasions, the Trustees and the dormitory advisors "knowingly permitted" the student defendants and other students to possess and consume alcoholic beverages in the residence halls in contravention of the license, regulations and laws and failed to take appropriate steps to control the student defendants. That on the date in question, the student defendants consumed "great amounts" of alcoholic beverages to the point of intoxication. That as a foreseeable result of said activity, the student defendants operated their vehicles while under the influence of intoxicants proximately injuring plaintiff. The Trustees and dormitory advisors were negligent in several particulars, including a failure to perform a mandatory duty to enforce the provisions of the license agreement, and by so doing "caused to be furnished" alcoholic beverages to persons under the age of 21 years and [123 Cal.App.3d 280] aided the student defendants to consume alcohol on campus negligently and in contravention of law which was enacted for the protection of the public from injuries and that a duty of care existed because of the landlord-tenant relationship.
...
Discussion
Negligence as Alleged ...
[3a] The allegations aver nonfeasance rather than misfeasance. (SeeWeirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 49 [123 Cal.Rptr. 468, 539 P.2d 36].) Liability can attach only if a special relationship existed between the Trustees on the one hand, and the plaintiff and student defendants on the other. (Mann v. State of California (1977) 70 Cal.App.3d 773, 778-779 [139 Cal.Rptr. 82]; Buford v. State of California, supra, 104 Cal.App.3d 811, 819-820.) We will examine whether the relationship of school and student or the school regulations impose such a special relationship.
Negligence in Reference to Primary and Secondary Education
[4] Schools and their personnel owe a duty to students who are on school grounds to supervise them and to enforce rules and regulations necessary for their protection. Either a total lack of supervision or ineffective supervision may constitute a lack of ordinary care. It is the task of supervisors to anticipate and curb behavior of students who have not attained full maturity. (Dailey v. Los Angeles Unified Sch. Dist. (1970) 2 Cal.3d 741, 747-748 [87 Cal.Rptr. 376, 470 P.2d 360].)
[5] The duty to supervise can exist off the school grounds by virtue of a duty to supervise students while on the campus. (Hoyem v. Manhattan Beach City Sch. Dist., supra, 22 Cal.3d 508, 515.) In Hoyem, a case which involved a dismissal at the demurrer stage, the allegations were that the 10-year-old student was negligently supervised and as a proximate cause of such negligence left the school premises without permission and was injured when hit by a motorcycle at a public intersection. The court held that although a school district is not an insurer of students' safety, it has a legal duty to exercise reasonable care in supervising students while on the school premises and may be held liable for injuries proximately caused by the failure to so supervise. Whether such duty existed and whether negligent on-campus supervision was the proximate cause of an off-campus injury were held to be questions of fact for the jury. [123 Cal.App.3d 282]
Hoyem relied on Dailey v. Los Angeles Unified Sch. Dist., supra, 2 Cal.3d 741 which reversed a motion for directed verdict in a case where two high school students were playing "slap boxing," during which one of the combatants fell, fracturing his skull, resulting in death. The Dailey court stressed that school authorities have a duty to supervise the conduct of children on school grounds, using ordinary care in doing so. "High school students may appear to be generally less hyperactive and more capable of self-control than grammar school children. Consequently, less rigorous and intrusive methods of supervision may be required. Nevertheless, adolescent high school students are not adults and should not be expected to exhibit that degree of discretion, judgment, and concern for the safety of themselves and others which we associate with full maturity." (Dailey v. Los Angeles Unified Sch. Dist., supra, 2 Cal.3d at p. 748.)
The pleadings under review are virtually identical with those in Hoyem and Dailey. In both cases, as well as the one before us, the complaint alleged that school personnel failed to exercise ordinary care in supervising a student while the student was on school premises, which proximately caused a student's resulting injury.
The ages and educational level of the students in those two cases varied considerably from those in the instant case. In Hoyem, the student was a 10-year-old boy. In Dailey, the student was 16 years old. The cases relied on in Hoyem involved a youth of 17 years (Satariano v. Sleight (1942) 54 Cal.App.2d 278 [129 P.2d 35]); a 15 year old (Calandri v. Ione Unified School Dist. (1963) 219 Cal.App.2d 542 [33 Cal.Rptr. 333]); and children 7 1/2, 8 and 10 1/2 years (Bryant v. United States (10th Cir. 1977) 565 F.2d 650).
In the instant case, none of the student defendants involved had attained the age of 21 years. Some of the student defendants were under the age of 18 years. fn. 1
Other Special Relationship Cases
[6a] When the avoidance of foreseeable harm requires a defendant to control the conduct of another person, or to warn of such conduct, [123 Cal.App.3d 283] the common law as a general rule imposes liability only if the defendant bears some special relationship to the dangerous person or potential victim. (Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 435 [131 Cal.Rptr. 14, 551 P.2d 234, 83 A.L.R.3d 1166].)
California cases have been quick to recognize 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. As summarized in Tarasoff v. Regents of University of California, supra, 17 Cal.3d 425, 436, footnote 9, they are: " Ellis v. D'Angelo (1953) 116 Cal.App.2d 310 ..., upheld a cause of action against parents who failed to warn a babysitter of the violent proclivities of their child; Johnson v. State of California (1968) 69 Cal.2d 782 ..., upheld a suit against the state for failure to warn foster parents of the dangerous tendencies of their ward; Morgan v. County of Yuba (1964) 230 Cal.App.2d 938 ..., sustained a cause of action against a sheriff who had promised to warn decedent before releasing a dangerous prisoner, but failed to do so."
And in Tarasoff, a therapist was told by his patient that he intended to kill Tatiana Tarasoff. The therapist and his supervisors predicted that the patient presented a serious danger of violence. In fact he did, for he carried out his threat. The court held that the patient-therapist relationship was enough to create a duty to exercise reasonable care to protect others from the foreseeable result of the patient's illness. The single relationship of a doctor to his patient was enough to require the exercise of reasonable care to protect a foreseeable victim. Accordingly, a judgment following the sustaining of a demurrer in favor of defendant therapist without leave to amend was reversed.
[3b] We must confront the difficult question of whether the relationship between the Trustees, on the one hand, and the students and plaintiff, on the other, creates a "special relationship" imposing a duty of due care to prevent injuries under the facts of this case. fn. 2
[6b] A relationship of dependence may create such a "special relationship." (Mann v. State of California, supra, 70 Cal.App.3d 773, 779-780; Buford v. State of California, supra, 104 Cal.App.3d 811, 821.) [123 Cal.App.3d 284] In Mann, a state traffic officer stopped to assist some stranded motorists on the freeway. He parked behind them with his rearward flashing light protecting them. After securing a tow car, he left, leaving them exposed. It was held that once he had undertaken to investigate their plight and informed himself of the foreseeable danger from passing traffic, a special relationship resulted, and he had to exercise ordinary care to protect them from the risk. (Mann, supra, 70 Cal.App.3d at pp. 779-780.) In Buford, a special relationship was found between one Daniels and the state by virtue of the fact that Daniels was an inmate in Atascadero State Hospital which required it to warn foreseeable victims about his release. (Buford, supra, 104 Cal.App.3d at p. 824.)
Another case involving a special relationship is Clemente v. State of California (1980) 101 Cal.App.3d 374 [161 Cal.Rptr. 799]. There a traffic officer stopped to investigate an accident whereby the plaintiff was injured while in a crosswalk when hit by a motorcycle. The officer radioed for assistance, but then left without obtaining the motorcyclist's identity. The motorcyclist left the scene. The plaintiff was disabled by the accident and dependent upon the officer, whose failure prevented plaintiff from suing the motorcyclist for damages. Because of the relationship between the investigating officer and the helpless plaintiff, the officer had a duty to exercise reasonable care in his investigation of the accident. (Id, at pp. 379-380.)
[3c] Plaintiff has attempted to bring herself within the above cases by alleging that a special relationship existed between the Trustees and the dormitory advisors on the one hand, and herself and the students on the other, by virtue of the license agreement ... under which she and the student defendants occupied their dormitory rooms. The important provisions of the license in respect to this case may be summarized:
The university retained the right to terminate the room license of any student on not less than one-day's notice and further reserved the right to change room assignments in the "interest of health, discipline, or the general welfare of the residents." The license further provided that no refund would be made to an occupant forced to vacate his/her room by reason of disciplinary action. [123 Cal.App.3d 285]
The university, while recognizing its obligation to respect the right of occupants of the residence halls to be free from unreasonable searches and seizures and intrusion into their living quarters, nonetheless retained a "reasonable right of inspection by appropriate University personnel," noting it was "necessary to the University's performance of its duties with respect to management, health, safety [and] maintenance of applicable rules and regulations, ..."
The license prohibited alcoholic beverages in the residence halls and forbade consumption of alcohol on the campus. Furthermore, no one was permitted to enter a residence hall or be on campus at any time while under the influence of alcohol.
Visiting hours in rooms of members of the opposite sex were limited to certain hours and students were further instructed ("shall") to comply with all orders, directives, rules and policies of the university.
We have difficulty in finding that the license agreement created the type of dependent relationship which was found in the traffic officer cases (Mann, supra, 70 Cal.App.3d 773, Clemente, supra, 101 Cal.App.3d 374 and Green v. City of Livermore (1981) 117 Cal.App.3d 82 [172 Cal.Rptr. 461], mod. 117 Cal.App.3d 870i fn. 3) or in the dangerously mentally ill cases (Tarasoff, supra, 17 Cal.3d 425, and Buford, supra, 104 Cal.App.3d 811) which would impose a duty to control alcoholic intake by students. In each, unlike the case at bar, an imminent danger (or potential for loss) to others was apparent. ...
The Supreme Court has identified certain factors in determining the ultimate existence of a "duty" to third persons. These factors include: "... 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." (Rowland v. Christian, supra, 69 Cal.2d at p. 113.)
Application of the Rowland elements to the circumstances herein alleged does not support a rule establishing a duty of care and imposition of liability. Plaintiff's injuries are alleged to be most substantial, and we have no difficulty finding a "certainty" in relation thereto. But there is [123 Cal.App.3d 287] a lack of a close connection between the failure of the Trustees and dormitory advisors to control on-campus drinking and the speed contest.
Nor may these defendants be "morally blamed" for their omission. Bradshaw v. Rawlings (3d Cir. 1979) 612 F.2d 135 is persuasive authority for this position. In Bradshaw the 18-year-old plaintiff was injured while returning from a sophomore class picnic which was held off campus. The driver of his vehicle became intoxicated at the picnic. The class advisor had cosigned a check for the beer. Flyers announcing the picnic were prominently displayed on campus; they featured a drawing of beer mugs. After a substantial verdict against the defendant college, the appellate court reversed, deciding as a policy question that the college should not be held obligated (should not have a "duty") to control such a drinking party. The court observed that the authoritarian role of college administrators is gone. Students have demanded rights which have given them a new status and abrogated the role of in loco parentis of college administrators. "[¶] 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." (Bradshaw v. Rawlings, supra, 612 F.2d at p. 138.)
The court further noted that college administrators no longer control the general area of general morals. Students have insisted upon expanded rights of privacy, including liberal, if not unlimited, partial visiting hours. The students had attained majority, with all rights accorded to them save the right to consume alcoholic beverages. As stated in Bradshaw at pages 139-140: "[¶] There was a time when college administrators and faculties assumed a role in loco parentis. ... 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. ... A dramatic reapportionment of responsibilities and social interests of general security [has taken] place. ... 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." [123 Cal.App.3d 288]
Although it is alleged that some of the student defendants were under the age of 18 years, it may be assumed that the majority of students at Cal Poly have attained majority. Since the turbulent '60's, California colleges and universities have been in the forefront of extension of student rights with a concomitant withering of faculty and administrative omnipotence. Drug use has proliferated. Although the consumption of alcoholic beverages by persons under 21 years of age is proscribed by law (Bus. & Prof. Code, § 25658), the use of alcohol by college students is not so unusual or heinous by contemporary standards as to require special efforts by college administrators to stamp it out. Although the university reserved to itself the right to take disciplinary action for drinking on campus, this merely follows state law. (Bus. & Prof. Code, § 25608.) The same may be said of the provisions of the license agreement prohibiting alcoholic beverages. We do not believe they created a mandatory duty. As stated in Bradshaw v. Rawlings, supra, 612 F.2d at page 141: "[Plaintiff] has concentrated on the school regulation imposing sanctions on the use of alcohol by students. ... We are not impressed that this regulation, in and of itself, is sufficient to place the college in a custodial relationship with its students for purposes of imposing a duty of protection in this case. ... A college regulation that essentially tracks a state law and prohibits conduct that to students under twenty-one is already prohibited by state law does not, in our view, indicate that the college voluntarily assumed a custodial relationship with its students so as to [impose a duty of protection.]"
Peterson v. City of Long Beach (1979) 24 Cal.3d 238 [155 Cal.Rptr. 360, 594 P.2d 477], relied on by appellant, is distinguishable. There a police officer violated city regulations. In the instant case, it was the students, not the Trustees, who committed the violation.
In reference to the policy of preventing future harm, the Legislature, as noted above, has consistently expressed a policy against consumption of alcoholic beverages by persons under 21 years of age and collegiate drinking. Thus, Business and Professions Code section 25658 provides: "[¶] (a) Every person who sells, furnishes, gives, or causes to be sold, furnished, or given away, any alcoholic beverage to any person under the age of 21 years is guilty of a misdemeanor.
"(b) Any person under the age of 21 years who purchases any alcoholic beverage, or any person under the age of 21 years who consumes [123 Cal.App.3d 289] any alcoholic beverage in any on-sale premises, is guilty of a misdemeanor and shall be punished by a fine of not less than one hundred dollars ($100), no part of which shall be suspended.
"(c) Any on-sale licensee who knowingly permits a person under the age of 21 years to consume any alcoholic beverage in the on-sale premises, whether or not the licensee has knowledge that the person is under the age of 21 years, is guilty of a misdemeanor."
A person under 21 years of age does not have unlimited access to bars. (Bus. & Prof. Code, §§ 25663, 25665.) And possession, consumption, sale, gift or delivery of alcoholic beverages on school grounds is prohibited. (Bus. & Prof. Code, § 25608.) A state college is a part of the public school system. (Cal. Const., art. IX, § 6.)
Sales of alcoholic beverages within a certain distance from campus of certain colleges and universities is proscribed. (See Pen. Code, §§ 172-172.9.)
Finally, an unaccompanied person under the age of 21 years may not drive a motor vehicle carrying any alcoholic beverage. (Veh. Code, § 23123.5.)
However, there is an obvious distinction between "giving" (Bus. & Prof. Code, § 25608) or "furnishing" (Bus. & Prof. Code, § 25658) alcoholic beverages and the failure to stop a drinking party or parties. Business and Professions Code section 25608, prohibiting consumption of alcoholic beverages on school grounds, imposes upon the university no duty to enforce the laws.
This is recognized in Coulter v. Superior Court, supra, 21 Cal.3d 144 which extendedVesely v. Sager (1971) 5 Cal.3d 153 [95 Cal.Rptr. 623, 486 P.2d 151] to noncommercial providers such as social hosts. Liability was predicated on Business and Professions Code section 25602, which provides that the furnishing of any alcoholic beverage to an obviously intoxicated person is a misdemeanor. Because of the language of the code, the court found no distinction between commercial vendors and social hosts. Imposition of civil liability was also predicated upon general negligence principles. The service of alcoholic beverages to an [123 Cal.App.3d 290] obviously intoxicated person when the provider knows such person intends to drive a motor vehicle creates a reasonably foreseeable risk of injury to those on the highway.
However, Coulter refused to impose liability on the owner of the apartment complex and its manager for "permitting" alcoholic beverages to be served on the premises to the negligent driver and who "'aided, abetted, participated [in] and encouraged' [the driver] to drink in excess." Since these allegations did not assert that these defendants actually furnished liquor to the driver, no liability was imposed. "Furnish" within the meaning of Business and Professions Code section 25658, implies some affirmative action. The court cited with approvalWiener v. Gamma Phi Chap. of Alpha Tau Omega Frat. (1971) 258 Ore. 632 [485 P.2d 18, 22, 53 A.L.R.3d 1276], which denied liability for merely providing a room where alcoholic beverages were to be served to minor university students. (Coulter, supra, 21 Cal.3d at p. 155.)
Plaintiff was injured before the 1978 Legislature amended the Business and Professions Code and the Civil Code (Bus. & Prof. Code, § 25602, subds. (b) and (c); Civ. Code, § 1714, subds. (b) and (c)) to immunize providers of alcoholic beverages from civil liability for injuries attributable to intoxication. But we see no preexisting policy imposing civil liability for the nonfeasance alleged against the defendants Trustees and/or dormitory advisors.
In reference to the policy of preventing future harm, we do not have here a case where university administrators collaborated with others to encourage students to imbibe with knowledge of their intention to thereupon operate a motor vehicle. The policy of preventing future harm, which the Supreme Court found so strong in Coulter, supra, 21 Cal.3d 144, is not as strong in the instant case because of the lack of direct involvement with the furnishing of alcoholic beverages.
In respect to the burden to the defendant and the consequences to the community of imposing a duty to exercise care with resulting liability for breach, it would be difficult to so police a modern university campus as to eradicate alcoholic ingestion. As stated in Bradshaw v. Rawlings, supra, 612 F.2d at page 138: "Certainly, the plaintiff in this case possessed an important interest in remaining free from bodily injury, and thus the law protects his right to recover compensation from those who [123 Cal.App.3d 291] negligently cause him injury. The college, on the other hand, has an interest in the nature of its relationship with its adult students, as well as an interest in avoiding responsibilities that it is incapable of performing."
Nor is it in the best interests of society to do so. The transfer of prerogatives and rights from college administrators to the students is salubrious when seen in the context of a proper goal of postsecondary 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.
We have nothing before us indicating the availability, cost and prevalence of insurance for the risk involved. But we assume Trustees, probably self-insured for exposure up to a certain amount, experience no difficulty in securing excess coverage for large risks at relatively modest rates.
We conclude that application of the Rowland elements do not support a rule establishing a duty of care under the facts of the instant case. fn. 5
...
Conclusion
This action is on the cutting edge of the tort law. Cases such as Tarasoff v. Regents of University of California, supra, 17 Cal.3d 425; Green v. City of Livermore, supra, 117 Cal.App.3d 82, modified 117 Cal.App.3d 870i; Rosales v. Stewart, supra, 113 Cal.App.3d 130; Buford v. State of California, supra, 104 Cal.App.3d 811; Mann v. State of California, supra, 70 Cal.App.3d 773;Uccello v. Laudenslayer, supra, 44 Cal.App.3d 504 and Quelvog v. City of Long Beach (1970) 6 Cal.App.3d 584 [86 Cal.Rptr. 127] have expanded the concept of duty. But imposition of liability here would extend it one step further. We believe that the public policy considerations discussed herein indicate that the step should not be taken.
The judgment is affirmed.
Evans (C. P.), J., and Thompson, J., concurred.