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		Institutional Negligence and Liability: Understanding It and Avoiding It By Regina Rousso Wilmes Director of University Housing Temple University "You'll hear from my lawyer!" As a housing professional, how many times have you heard that from the mouths of your residents and/or their family members? Many of us have only a vague idea of what actually constitutes negligent behavior on the part of an individual and/or their institution, or in what situation liability would be determined. A working knowledge of the basic principles of negligence and liability may help housing staff members safeguard their residents, staff members and institutions. The dictionary defines negligence as the failure to exercise prudent care. It means that an individual or an institution was careless due to lack of attention or diligence, and was, therefore, responsible for harm that occurred. In order for a court to find that there was negligence, four elements must be present in a situation. The four elements of negligence are: Existence of a duty of care (a duty to protect) Breach of that duty Actual injury Proximate cause (Actual injury caused by breach of the duty of care) If all of these elements are present, then the institution has been negligent and is liable. Liable means responsible and subject to penalty. The Duty of Care There are four situations in which the university, as property owner, has a duty to protect someone on their premises. Existence of Special Relationships - The "landlord-tenant" relationship between residence hall administrators and residents is considered a special relationship. A special relationship exists when students surrender control of their own protection to the university. For example, since we do not permit students to install their own locks on their room doors or to keep a guard dog in their living units, they have surrendered control of their own protection to us. People Invited Onto the Premises for Business - Students are considered invitees to university campuses for business purposes and, thus, are owed the duty of care. This would also cover conference attendees and other individuals or groups housed in our facilities. Misrepresentation of Safety - Students rely on the institution's representation of the safety of the environment. If that environment is misrepresented as being safer than it actually is, and a student is harmed because of that misrepresentation, the duty of care exists. The murder of a student at Lehigh University led to federal legislation that now requires campuses to publish an annual report of crime statistics. The goal of that legislation was to require institutions to be forthcoming about the safety of their environment. Existence of Dangerous Conditions and the Foreseeability of Harm - If a condition exists that has the foreseeable potential to cause harm, then the institution owes a duty of care to protect people from coming to harm from that dangerous condition. For example, a key cabinet was habitually left unlocked, a key was stolen, and a theft from a locked room occurred. In this case the dangerous condition was the unlocked key cabinet and it was foreseeable that a key could be taken and used for illegal entry. The duty of care means that the dangerous condition, once determined, must be removed. In the example, the key cabinet must remain locked when not in use. Exceptions to the Duty of Care There are two circumstances in which, even if a duty of care is established by one of previously described situations, the institution may not be held liable for negligence. Dangerous Conditions In the Absence of Foreseeability - The existence of dangerous conditions alone, without the foreseeability of harm, does not impart a duty of care. For example, a resident spilled a drink on a tile floor after housekeeping staff left for the day, no one else saw the spill, and someone slips on the puddle and sprains a wrist. Though a dangerous condition existed (the puddle) there was no foreseeability of harm because no one in a position of responsibility was aware of the dangerous condition, and was therefore, able to remove it. Unanticipated and Sudden Acts - Unanticipated acts are not foreseeable. Thus, the institution could not have taken precautions to prevent them and should not be held responsible for their occurrence. A tragic example took place at North Carolina Wesleyan College, when a student was abducted and murdered after a sporting event. The crime was considered unforeseeable because there had been no history of criminal activity that would have led administrators to predict that such a crime was likely to occur. Contributory Negligence Sometimes, even when an institution is held liable for negligence, it is not held solely accountable for what happened. Contributory negligence occurs when the person who was harmed was partially responsible for what took place. For example, a university registered bicycle club continues to lend a bicycle with faulty brakes. A member of the club, who knew of the problem, uses the bicycle and is injured in an accident. The student is partially responsible because he chose to use a bicycle he knew was unsafe. However, the institution may also be found partially responsible since it recognized, funded and provided an advisor to the club. Practical Application of the Information The following questions may be used to help assess any number of situations to determine their potential for negligence and liability. Does the duty of care (duty to protect) exist? Is there a special relationship? Have participants/residents been invited onto the premises for business? Has there been any misrepresentation of the safety of the environment? Does a dangerous condition exist and is harm foreseeable? If the answer to a, b, c or d is yes, then the duty of care is established. Has the duty been breached? Did we fail to take reasonable measures to protect our residents/invitees? Did harm actually occur? Was there proximate cause? Was the harm caused by the breach of the duty of care? If the answers to 1, 2, 3, and 4 are yes, then there has been negligence and liability exists. Measures to Protect Against Negligence Regularly review environmental conditions and their potential impact on safety and security. If dangerous conditions exist, correct them or remove them. Work to ensure that procedures, practices and measures that have been put in place to protect students and staff are being followed. Train and supervise staff to recognize and resolve dangerous conditions or to report them to the person or office with the ability to fix the problem. Educate students about the potential for harm from their environment and/or from the behaviors of others (or themselves). Teach student strategies to protect themselves. If sponsoring an event that may involve risk-taking behavior (such as a white-water rafting trip) utilize "informed consent" forms, which state that the participant is aware of the potential danger involved in the activity. Do not use personal vehicles to transport. Use a university vehicle or rent one and make sure the driver is licensed to drive that type of vehicle. Do not make it mandatory for anyone to engage in risky behaviors (such as staff members participating in a ropes course). These are a representative sample of the measures that can be taken. Housing professionals are encouraged to utilize the basic principles described in this article to generate additional strategies that will assist in safeguarding our students, our staff and our institutions from negligence and liability. About the Author Regina Rousso Wilmes has held a variety of positions in both Residence Life/Housing and Student Affairs at Emerson College, the University of Cincinnati, Semester at Sea and Temple University. During the past 17 years, Regina has been active in ACUHO-I, GLACUHO, MACUHO and BACHA. She has a special interest in legal issues in student affairs and has excelled in graduate coursework on the topic. Regina is currently the Director of University Housing at Temple.