ERIC ED355885: Student Activities. Managing Liability.

21 Pages·1993·0.6 MB·English

by  ERIC

DOCUMENT RESUME
HE 026 328
ED 355 885
Bennett, Barbara; And Others
AUTHOR
Student Activities. Managing Liability.
TITLE
United Educators Insurance Risk Retention Group,
INSTITUTION
Inc., Chevy Chase, ED.
PUB DATE
[93]
NOTE
21p.-
Descriptive (141)
Reports
PUB TYPE
EDRS PRICE
MFO1 /PCO1 Plus Postage.
College Administration; Demonstrations (Civil);
DESCRIPTORS
*Extracurricular Activities; Higher Education; *Legal
Responsibility; Postsecondary Education; Private
Colleges; Public Colleges; School Policy; School
Safety; School Security; *Student Organizations;
Student Publications; *Student School Relationship
*Risk Management
IDENTIFIERS
ABSTRACT
This monograph suggests ways that college or
university administrations can undertake a systematic and careful
review of the risks posed by students' activities. Its purpose is to
provide guidance in integrating the risk management process into a
school's existing approaches to managing student organizations and
activities. It is noted that no single approach has been found that
will suit an institution permanently and in all cases, and that
neither an arms-length or a sponsored (university-owned) approach
provides an institution with an absolute shield from liability. The
authors distuss the recognition and sponsorship of student activities
in higher educational institutions, when campuses can be found to
have legal responsibility for student activities, and ways in which
colleges can effectively address the liability question. In addition,
the report provides an Audit Guide for Student Activities form that
helps the school's management identify the school's role,
responsibilities, safety concerns, contractual policies and
obligations, and its possible liability and indemnification. Four
brief sample cases are presented as inserts to illustrate the
principles discussed. (Contains 27 endnotes.) (GR)
***********************************************************************
Reproductions supplied by EDRS are the best that can be made
from the original document.
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evaluating a myriad of stu-
E-fery college and universt, has its own way of categorizing and
dent activities. While these judgments may have been based solely on educational philosophies
in the past, today they are used:
to allocate limited resources;
to effectuate a mission;
Many individuals provided information and assistance for
to meet student interest; and
this monograph, including the United Educators' Risk Man-
to limit the liabilities to which the institution is
agement Advisory Committee members: Philip Burling,
exposed.
Foley, Hoag & Eliot; Siri Gadbois, Vice President for Risk
Management, Educational & Institutional Insurance ."..dmin-
While it is common to talk about recognition and
istrators; Nancy J. Graham, Risk Manager, University of
sponsorship of student activities, these terms have no
Pittsburgh; Gary R. Harris, Director, Office of Risk Manage-
uniform meaning. Nor is there a universal process to
ment, University of Cincinnati; Glenn Klinksiek, Director of
identify which groups have which rights or privileges.
Risk Management, University of Chicago; Claudina
Madsen, Risk Manager, Santa Clara University; George
Some institutions require that groups undergo a formal
Meeker, Director of Risk Management and Insure rice,
application review process, others permit the student
Cornell University; Phillip M. Grier, Executive Director,
government to bestow such rights, and still others estab-
NACUA; Edward J. Shanahan, Head, Choate-Rosemary
lish an automatic process that is self-generating.
Hall; and Sheldon Steinbach, Vice President and General
It is possible, however, to identifi, two opposite ap-
Counsel, ACE. Special thanks go to Leta Finch, Committee
proaches to managing student organizations and ac-
Chair, at Vermont Insurance Institute.
tivities:
The authors would like to thank the following individuals
for their support, comments and suggestions: Tom Henne-
The distant or "arms length" activities that are
berry. Director of Insurance and Legal Affairs, MIT; Joe
independent from the institution's physical, financial
Buchanan, Dean of Campus and Community Services, Tide-
or administrative involvement. T) pically, the arms
water Community College; Gary Pavela , Director of Judicial
length approach involves the institution only in the
Programs at University of Maryland and Editor of Synthesis;
ministerial aspects of student activities.
Marsha Duncan, Vice President for Student Affairs, Lehigh
The sponsored or "university-owned" activities,
University; and Raymond Heath, Vice President for Student
which have active management, financial, physical and
Affairs, LaSalle University.
administrative involvement from the institution. This
United would also like to extend thanks to our law clerk,
approach usually involves significant staff and faculty
Don Schroeder, for his research and editorial assistance.
time.
Most institutions use either a hybrid approach to stu-
found no single
dent activities or try to match the approach to the particular activity. We have
organizations,
approach that satisfies all of the educational or management goals for student
permanently and in all instances. It is also
nor is there an approach that will suit an institution
institution with an
important to note that neither one of the "extreme" approaches provides an
absolute shield from liability.
'as
it
M
hazing, sexual assault or other
head of Operation Rescue as
olleges and universities
negligent or criminal behavior),
that
speaker. The president feels
VI have long had to re-
yet took insufficient steps to
and
the issue is confrontational,
spond to student activi-
stop the behavior; and
block
he fears that the rally will
ties and organizations
greater
hospi-
a Courts are finding
access to the university
which push against the
responsibility is held by colleges
tal, which performs abortions.
stretch the
-, rules and
when injuries happen
limits. Administrators on
the
on campus, or in
campuses around the
course of an activity
country routinely receive
that has some official
telephone calls requesting
connection to the
guidance on how to man-
institution.
age a wide-range of ac-
tivities.
United Educators has
The faculty advisor of
prepared this paper to
the canoeing club calls
give you an overview of
to ask if she should is-
the issue of student
form
sue a new waiver
activities on campus. We
when the club goes
hope it will assist cam-
sky-diving.
pus administrators to:
The transportation
identify campus
director calls to report
practices that warrant
that six undergraduates
attention and review;
were injured when a
suggest several review pro-
The head of the student gov-
university van, driven by a stu-
of
the
cesses that can identify areas
ernment calls to inform
while
dent, hit a car downtown
university that he just signed a
potential liability; and
returning from a dormitory-
Roses to
contract with Guns 'N
share successful management
sponsored tutoring project.
perform a live concert in the
by
practices currently in use
A resident assistant calls to
university's stadium next
other institutions of higher
report that a female first year
month.
education.
student returned to her dorm
have
from a fraternity party with
Unfortunately, several things
This paper is not intended to re-
bleeding. Her
to
severe bruises and
happened that make responding
place the traditional educational
friends told the RA that she had
these questions and managing
activi-
approach to extracurricular
been served drinks at the frater-
these incidents more difficult.
liability
ties with an economic or
nity house and was subse-
National laws now require
analysis. It is our goal to suggest
quently raped by three frater-
and in
colleges to have in place,
administration
ways in which the
nity members.
seek to protect
use, policies that
systematic and
can undertake a
The president calls to insist
underage
students from hazing,
by
careful review of the risks posed
and
that the anti-abortion advocacy
drinkir g, illegal drug use
help
students' activities, and to
be per-
group on campus not
sexual assault;
risk
create a process to integrate
mitted to run an advertisement
less
management into its existing
Courts are increasingly
in the university newspaper
respectful of a college's attempts
approach.
announcing a rally with the
instances
to limit liability in
AVittitlittE
of
where the college was aware
dangerous activities (such as
3
STUDENT ACTIVITIES
tiorship, an institution may be
-While
rejected unanimously under the
an institution is not
subject to duties prescribed by
current law.
normally held responsible for
statute or assumed under a con-
Increasingly, however, courts
the independent behavior of
tract, i.e., a contract that has
have held colleges and universi-
each student, its responsibilities
been executed by the institution
ties liable for organized student
can be very different when that
or execute(' by a student organi-
activities by finding other spe-
behavior occurs in the context
zation that has appar-
of an organization or
ent or actual authority
group that carries with
to bind the institution.
it the actual or implied
approval, recognition,
sponsorship, or control
WHEN THE
of the institution. For
UNIVERSITY
example, an institution
IS THE PROPERTY
OWNER
generally will not be
held liable for injuries
The trend in both the
resulting from an auto-
media and the law
mobile accident caused
increasingly holds
by a group of intoxi-
colleges and universi-
cated students driving
ties accountable for
back to campus from
providing students
dal relationships between stu-
an off-campus bar. If, however,
with a reasonably safe campus
dent organizations and the
the intoxication or
environment. As a landowner or
GLossAmy (GLO' SE-RE)
institution. Special relationships
driving occurred dur-
landlord, an institution is
have been found based on:
ing a university-spon-
obliged to maintain rersonably
agencyrelationship in which
sored field trip or club
the college's status as a prop-
safe premises.2
one person acts on behalf of an-
outing, institutional
erty owner or landlord and the
other with the authority of the
liability is more likely.
student organization's status as
Duty to Inspect &Duty to Warn
latter. "The acts of an agent will
Under tort law
a tenant or invitee; and
he binding on his principal."
Although the specifics vary
there is no duty to
the involvement of the col-
from state-to-state, a landowner
dramshop actsacts
which
control the conduct
lege in a student organization
generally does not have a duty
ci a person to prevent
strictly regulate licensed estab-
or activity to the extent that
to ensure the safety of those on
injury to that person
lishments engaged in the sale of
the organization is viewed as
its property, but rather is re-
or others unless there
alcoholic beverages and impose
an agent acting on behalf of
quired to exercise reasonable
exists what the law
civil liability for dispensing alco-
the institution.
care in inspecting the premises
hol to an intoxicated patron.
calls a "special rela-
and protecting or warning
The way in which an institution
tionship."' In the
tortA
wrongtid act, damage,
against any known or foresee-
interacts with or treats a student
past, courts found
or injury done willfully, negli-
able dangers. Therefore, while
organization or other organized
that a person's status
gently, or in circumstances in-
there is not an obligation to
activity may also raise liability
as a student created a
volving strict liability, but not
ensure the absolutr. safety of
concerns. For example, censor-
special relationship
involving breach of contract, tbr
students involved in organized
ship of a publication, or refusal
with a university
which a civil suit can be brought.
activities on campus, liability
to recognize a group with an
sufficient to impose a
may be imposed if a university
unpopular philosophy, raises
general duty to con-
fails to regulate a pattern of
constitutional issues that can
trol and protect. This doctrine
dangerous conduct, or warn of
create liability for an institution.
of in loco parentis has been
In addition to potential tort
liability created by a special rela-
I)
MANAGING LIABILITY
4
out its anti-hazing policy in an
repeated pattern of criminal
prior occurrences or reasonably
effective manner, citing the fact
activity.6 In another case, a
foreseeable instances of danger.
that the campus police were
college was held liable for a rape
Sometimes it is difficult to
unaware of this policy and had
because the presence of thick
predict what will be required of
seen, but not responded to,
untrimmed bushes made it
an institution in a given situa-
evidence of hazing activities on
foreseeable that an attacker
tion. For example, in one case
the campus.
could hide from view, even
in which an annual pushball
Another court found a
though there was no history of
game had been held between
university liable for a rape on
attacks in the area.'
the first year student and
campus because the university
sophomore classes for 38 years,
routinely left the doors to the
When It Voluntarily Assumes
a court held that the college
a Duty
campus building unlocked, even
had no duty to supervise the
though prior incidents had
When a college voluntarily
game because there had been
occurred in that building.9 Con-
undertakes a duty to provide
no previous serious injuries and
certain protection
because the event was not in-
THE ISSUE
or security, the law
herently dangerous.' Another
requires that the
court held that a university was
duty be carried out
Most educators believe extra-curricular and co-curricular
not liable to a student injured
and a
with significant care
activities are important to student development
during roughhousing at a frater-
and consistency. Li-
nity party because there was no
complete education. Since some risk exists in all activities
ability may result if
duty to safeguard or warn
rugby clubs, concerts, community service projects, or
the duty, although
against that type of injury.' Yet
our goal is to suggest ways that
political action groups
undertaken volun-
in another case, a court held
liabil-
the administration of an institution can review the
tarily, is performed
that a university had a duty to
appropriate ac-
ity imposed by student activities and take
negligently.
take reasonable precautions to
tion to mitigate that exposure.
Adoption of poli-
protect those who attend its
The liability issues and risk management options pro-
prohibitions
cies
football games in light of
of interest
against known dan-
posed in this issue of Managing Liability will be
known tailgating and drinldng.s
gerous behaviors
and coun-
to student affairs administrators, risk managers
that are not consis-
Duty Dependent on
dis-
sel, as well as business officers. We encourage you to
Foreseeability of Harm
tently and effec-
and the di-
tribute copies to anyone responsible for policy
tively enforced can
Some courts will not hold a col-
rection of student organizations and activities.
operate to create a
lege responsible for injuries on its
Burton Sonenstein, President
expansive
more
property unless there have been
duty. This was the
similar incidents and, therefore, a
case in the recent
duty on th:: part of the university
versely, yet another court held
Furek v. University of Delaware,"
to protect. Other courts, how-
that a university satisfied its
in which the institution pro-
ever. require only that the danger
assumed duty of supervising the
mulgated policies prohibiting
be reasonably anticipated.
safety of a canoe outing by pro-
hazing by its off-campus fra-
In one case where a college
viding a motorboat escort, a
ternities. A fraternity which
student was abducted outside a
light in each canoe, the partici-
merely rented the land on
gym ,llowing a basketball
pation of veteran canoeists, am.
which its house was located
game, the court held that the
by monitoring of local weather
injured a pledge by burning
college could not be found
forecasts, even though two stu-
him with a lye-based substance.
liable given the absence of a
The State Supreme Court found
that the university did not carry
WI/
its agent, namely a person or
assumed voluntarily by an insti-
dents drowned during the out-
entity acting under the control
tution, a college or university
ing in an unexpected storm.rn
of, or for the benefit of, the
may be held vicariously liable
Institutions often ask whether
institution. The most common
under the law of agency, if it
it is necessary to protect against a
agents for an institution are its
exerts a certain level of control
foreseeable danger or merely to
"It is not
employees, who, when acting
over the acts of student organi-
warn of the danger. The decision
within the scope of their em-
zations or activities. The general
is usually not a legal one. Warn-
ployment, can create liability
rule is that liability is imposed
ing of a potential danger will
clear how much
for the institution.
on an institution for the acts of
often suffice to protect an institu-
tion against liability,
CASE BOX
I
but warning against all
MIEMIZEI
dangers is not possible.
The faculty advisor of the canoeing dub calls to ask if she
New laws, such as the
should issue a new waiver form when the dub goes sky-diving.
control over a student
Campus Security Act
If the institution has an arms-length relationship with student groups
(discussed infra) require
the college to provide
(which a number of institutions would necessarily do with such a
organization or activity
notice
of
"timely"
risky, hard-to-manage activity), it may take the following steps to en-
crimes committed on
sure that this relationship is reinforced:
the campus. The Furek
is necessary to
Have each participant sign a statement indicating that he/she understands
case suggests that some
that the university is not involved in this activity, that skydiving is dan-
activities that are known
(specifying the harm that can
gerous even with supervision and instruction
create an agency
to the administration,
befall students involved in skydiving), and that they understand that the
which are obviously
institution has not had a part in selecting the skydiving facilities or opera-
dangerous and able to
relationship."
tions that will be used by the club.
be -ontrolled, may im-
Include in the student handbook a fist of activities that the university will
a greater duty on
p .
inability to provide for
not sponsor because of the physical risks and the
the institution to inter-
vene. One recent court
students' safety.
case has followed Furek's
of the
Make clear that the involvement of faculty is personal and not part
reasoning in holding a
have a
staff member's responsibilities to the institution (some schools
university liable for "en-
special status for clubs that are unique areas of Liiterest).
couraging" sledding in
take
If the institution is willing to embrace the activity, it will want to
certain areas, resulting
and of a qualified
steps to ensure that its involvement is consistent
in serious injury to a stu-
dent."
level.
and equipMent
Have university counsel review the contract for airplane
WHEN THE STUDENT
the
services to ensure that it places responsibilities for injury or death on
ORGANIZATION IS
service provider.
VIEWED AS ACTING
financial resources
ON THE COLLEGE'S
Review the adequacy of the insurance and underlying
BEHALF
of the service provider before entering into any contract.
In addition to liability
conscious
Make sure that the faculty or other advisor is well trained, safety
created because of a
and able to instruct students about the activity.
duty imposed by law or
and to limit
Require the club to clear any skydiving activities beforehand
dispersals to only those outings that meet that requirement.
MANAGING LIABILITY
publicity and advertisement for
Duties
for playing, and the institution
events on campus. If students or
charged no admission to the
An institution that assumes
faculty represent themselves as
games, even though the school
control over a student group's
acting on behalf of, or in the
provided transportation to the
activities assumes the duty to
interest of, the institution, a
games and provided the players
ml of student
II
assert that control consistently
court may find that it is reason-
with a coach and uniforms.12
and in a careful manner that
able for third parties to rely on
will prevent foreseeable harm. It
Student Publications
the student's or faculty
publications and
is not clear how much involve-
member's apparent authority to
Control of student publications
ment or control over a student
bind the institution.
and their content can make the
organization or activity is neces-
their content can
publication an agent of the
sary to create an agency rela-
university and create institu-
WHEN THE COLLEGE'S
tionship, or whether mere
ACTION BECOMES A
tional liability for defamation.
registration of an organization
make the publication
CONSTITUTIONAL VIOLATION
Courts generally hold that an
can create this relationship so
institution is not liable for the
that the acts of the organization
Student constitutional rights
defamatory statements made by
an agent
that limit a public institution's
become the acts of the institu-
a student newspaper when the
tion. Similarly, the involvement
authority include:
institution only furnished the
of faculty advisors in an organ-
First Amendment rights of
of the university and
space and services and exercised
ization's activities could estab-
speech, press, religion and asso-
no control over content."
lish the institutional control
ciation;
necessary to create an agency
create instihitional
Fourth Amendment rights to
Contractual Liability
relationship. In each case, the
be free of unreasonable searches
determination will depend on
The agency relationship be-
and seizures; and
the natur, of the organization
liability for
tween an institution and a
Fourteenth Amendment
and the extent of the univer-
group of students or student
rights of due process and equal
sity's involvement.
organization advisor can also
protection, including those
defamation:!
A college should recognize,
create contractual liability for
protected by federal and state
however, that once it requires a
an institution. Student organi-
discrimination laws.
faculty member to act as an
zations and those students or
organization's advisor on behalf
faculty advisors in charge of
of the university, rather than
Public Institutions
organized student activities may
voluntarily as an individual, the
be tempted to enter into various
Refusal of a public university to
institution may have created an
contractual arrangements that
recognize unpopular student
agency relationship and may be
could bind the institution not
organizations without a compel-
responsible for not only the
ling reason has been held to be a
only to the performance of the
negligence of the advisor, but
obvious obligations of the con-
violation of students' First
also for its own failure to ad-
Amendment rights of speech and
tract, but also to provisions
equately train the advisor.
association." Public institutions,
concerning indemnification
In one case, a student's par-
however, have been held to have
and insurance.
ticipation in a lacrosse club did
the authority to prohibit student
These agreements can range
not make that student an agent
from contracts with performers
organizations from discriminat-
of the university in injuring
ing on the basis of race, sex,
and speake-..., or engagements,
another student when the injur-
to agreements allowing the use ethnic origin and handicap, even
ing student used his own equip-
of university facilities or to
if it infringes on students' rights
ment, received no compensation
sponsor promotions. Commit-
ments can also take the form of
7
STUDENT ACTIVITIES
CASE BOX 2
The transportation director calls to report that six
undergraduates were injured when a university van, driven
expressed by an organiz.ation.°
by a student, hit a car downtown while returning from a
Similarly, while a public institu-
dormitory-sponsored tutoring project.
tion retains authority to impose
If the college operates on an arms-length basis with student groups
reasonable rules and regulations
such as this, it may decide not to permit such groups to use university on the use of campus facilities
by student organizations, once
vehicles. If the university decides to maintain such a policy, it will
a public forum has been desig-
need to decide answers to the following questions:
nated, content-based exclusions
of
Do its handbooks and policies make it clear to the advisors, directors
are prohibited." For example, if
university
the transportation program and the student groups that use of
a campus approves an area for
vehicles is not permitted for such groups?
posting announcements or
trig-
Does the institution want its own liability or automobile policies to be
holding meetings, approval
the
may not be withdrawn based
gered in the event of such a serious accident? Whatever the decision,
institution needs to be very clear with both the students and the broker
on the views of the organiza-
tion planning to use the area.
about its intent with respect to insurance.
A public institution may not
it
If the college chooses to embrace such student volunteer activities,
interfere with, review or control
should set up a process to satisfy its need to be involved. To minimize
the contenZ or editorial policy
the risks of such an outing, the university could require:
of a recognized student publica-
tion, but may place reasonable
adminis-
that the student group clear its travel times and plans with the
time, place and manner restric-
tration;
tions on publication.° Also, an
department with
that student drivers provide the university's motor vehicle
institution has a recognized
the information necessary to review the student's driving record;
right to charge a mandatory
that all student drivers undergo training in the sate operation of the van
student fee to support all orga-
used; or
or any other university fleet vehicles to be
nizations, even if certain orga-
nizations are repugnant to
rules, such as permit-
prompt disciplinary action when any students violate
those students paying the fee.°
drinking.
ting an unauthorized driver to operate a vehicle or driving after
This right, however, does not
but
Some colleges do not permit students to use university vehicles,
extend to the on-campus spon-
who drive personal vehicles for
may reimburse students or faculty
sorship of off-campus groups,
such as Public Interest Research
particular uses. Some institutions condition eligibility for reimburse-
Groups. 20
ment upon:
record
screening of the driver, after the institution has conducted driving
Private Institutions
and insurance coverage review; and
Private institutions are not held
review and approval in advance of the travel plans.
to the same constitutional stan-
dards as are public institutions,
except in the case of discrimi-
While students af. public
nation laws that prohibit the
of association. One court found
institutions have a general right
that the suspension by a univer-
exclusion or discriminatory
to organize, use facilities, and
treatment of protected groups.
sity of a fraternity for race dis-
express their views, there exists
In addition, some state consti-
crimination served a sufficiently
no clear right to institutional
compelling interest to justify the
funding, unless the funding is
intrusion on association rights."
awarded discriminately or based
on the content of the ideas
MANAGING LIABILITY
8
ta
United Educators Insurance Risk Retention Group. Inc.
AUDIT GUIDE FOR STUDENT ACTIVITIES
For internal use only, not for distribution.
I. 111)1 C SI C1)1.7s. I .\t I
ACTIVITIES REGULARLY UNDERTAKEN
RELATIONSHIP TO SCHOOL
NAME OF ORGANIZATION