Boisson v. Board of Regents (CA1 3/10/15)

Over the years our courts have “clarified” the concept of duty to the point where its now fairly mysterious, even to them.

Several U. of A. students were on a “study-abroad” program in China at Nanjing American University. While there they decided to visit Mt. Everest, where one died of altitude sickness. His mother sued both “universities.” (How, you ask, can an Arizona court have jurisdiction over a Chinese college? Turns out that “Nanjing American University” isn’t “Nanjing University” except, perhaps, for marketing purposes; its instead an Arizona corporation.) The defendants moved for summary judgment on the theory that they had no duty; the court granted it. Mom appealed; the Court of Appeals affirms.

The analysis starts by explaining that there is this thing called “duty” which, along with things called “causation” and “damages” gets you a negligence case. One wonders what group of elementary-school infants they write these things for.

(As to “duty,” the court tells us that the law before 2007 (citing Gipson 2007) “created some confusion and lack of clarity . . . as to what extent, if any, foreseeability issues bear on the initial legal determination of duty.” Courts write their own versions of history and so that is presumably what history will now say: there was confusion before Gipson brought us light. So much for those of us who lived through our courts’ long, slow, and quite deliberate process of creating a justification for the rejection of the Palsgraf standard (“the risk to be foreseen defines the duty to be obeyed”), which we had followed for decades, in favor of a “standard” by which judges make up duty as they go along.)

Arizona cases had held that schools have a duty to students for on-campus events. A Restatement section says that duty extends to a student “at school or otherwise engaged in school activities.” Does that include off-campus events? Well, here the court clearly feels that it is running into a problem. Under Gipson duty is strictly legal, not factual. “Accordingly, this court does not look at ‘the parties’ actions’ alleged to determine ‘if a duty exists.’”  “Instead, this court looks to the legal factors identified elsewhere to determine whether the Tibet trip was an off-campus school activity for which Defendants owed  . . .  a duty of reasonable care.” How does it do that? By plunging back into factual analysis, so at this point you can abandon all hope of a clear idea of what the court thinks its doing.

Citing the Restatement again, “the [school’s] duty is tied to expected activities within the relationship. Therefore, in the student-school relationship, the duty of care is bounded by geography and time, encompassing risks such as those that occur while the student is at school or otherwise under the school’s control.” (Are you following this? Duty can depend on what’s “expected” but not on what’s “foreseeable.”) “In what are at best analogous contexts, Arizona cases have identified the following factors in determining whether an off-campus activity is deemed a school activity”: its purpose, whether it was part of of the curriculum, whether the school supervised it, and “whether the risk was independent of school involvement.” Though the cases are “at best analogous” and the factors strictly factual the court applies them and, after lengthy discussion of the facts of the trip to Mt. Everest, decides that the schools had no duty.

The court then switches back to legal analysis, deciding briefly that no public policy requires off-campus liability and that there’s no duty simply because the plaintiff’s expert opined that there should be.

(link to opinion)