Ordinary Standard of Care Applies in UCLA Stabbing Case

Wednesday, December 5, 2018

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Court of Appeal:

Ordinary Standard of Care Applies in UCLA Stabbing Case

Issue Unresolved by High Court Decision Is Addressed; Summary Judgment Ordered In Favor of One Defendant, Jury to Decide Reasonableness of University’s Conduct

By a MetNews Staff Writer

The Court of Appeal for this district has adopted the ordinary negligence standard of care in a case against UCLA brought by a former student claiming the university should have prevented the 2009 stabbing of her by another student in a chemistry lab.

The opinion, filed Monday, was written by Justice Laurie D. Zelon of Div. Seven. It comes after the California Supreme Court’s decision on March 22 reversing Div. Seven’s grant of a petition by the Regents of the University of California for a writ of mandate directing the Los Angeles Superior Court to enter summary judgment for the university.

In the prior opinion, filed Jan. 20, 2016, Zelon explained the majority’s holding that UCLA did not owe a duty to Katherine Rosen, who was stabbed in the chest and neck by her classmate Damon Thompson. The university was aware he suffered from schizophrenia.

The high court disagreed, in an opinion by Justice Carol A. Corrigan, siding with Presiding Justice Dennis M. Perluss who dissented from the previous opinion. It held “that universities have a special relationship with their students and a duty to protect them from foreseeable violence during curricular activities.”

Corrigan’s opinion left open the standard of care applicable to that duty. In addition to resolving that question, Zelon’s opinion on Monday holds that UCLA failed to show it had not breached its duty as a matter of law, and that it is not immune from liability for Rosen’s cause of action.

University’s Proposed Standard

While Rosen argued for the application of the “reasonable person” standard of care generally applied in negligence cases, the regents contended that a statutory standard of care should apply. Specifically, they urged Div. Seven to use the standard enumerated in Civil Code §43.92(a), which provides:

“There shall be no monetary liability on the part of, and no cause of action shall arise against, any person who is a psychotherapist as defined in Section 1010 of the Evidence Code in failing to warn of and protect from a patient’s threatened violent behavior or failing to predict and warn of and protect from a patient’s violent behavior except where the patient has communicated to the psychotherapist a serious threat of physical violence against a reasonably identifiable victim or victims.”

Though by its terms the statute applies only to psychotherapists, the university contended that it would defy logic “to impose a less protective standard of care on lay [school personnel] who don’t possess the same training and experience as [a psychotherapist].” It also noted that a school’s “mental health professionals’ assessment of the potential threat posed by the student” normally forms the basis for its understanding of such situations, and so the same standard should apply.

Invitation Declined

Zelon responded:

“Although we recognize that ‘in particular situations a more specific standard [of care] may be established by judicial decision’…, there are several reasons we reject defendants request that we do so here.”

She noted that Corrigan’s opinion “repeatedly states that the duty requires colleges and universities to use ‘reasonable care’ to protect their students, emphasizing that ‘[r]easonable care will vary under the circumstances of each case.’ ”

Prior opinions from the high court, she added, “held that the standard of care that governs a secondary school’s duty to protect its students from foreseeable acts of violence is the ordinary reasonable person standard,” finding no reason why post-secondary schools should not be subject to the same standard.

“Finally, we note that although presented as an alternative standard of care, UCLA’s proposed limitations on when a university may be held liable for failing to protect students from foreseeable acts of violence would effectively operate to narrow the scope of the duty that Regents announced,” she said, adding:

“If the Court had intended to limit foreseeability in the manner defendants propose, it would have stated as much in its decision.”

Sec. 43.92

The psychotherapist standard of care had shielded one defendant in the prior Div. Seven opinion: UCLA psychologist Nicole Green, who had treated Thompson prior to the attack. The granting of writ petition in her favor was reaffirmed Monday.

Green had not been aware of any specific threat made by the attacker against a specific student, Zelon explained. Thompson had told the psychologist he was hearing voices mocking him and that he felt harassed by fellow dormitory residents; Green put him on psychotropic medication, but he stopped seeing her and taking the drugs prior to the attack.

That immunity did not, however, extend to the university at large, Zelon said.

She found unavailing the regents’ contention that Government Code §856 applied, which limits liability for public entities and employees for injuries arising from a decision whether or not to confine a mentally ill person. Rosen’s cause of action was predicated not on Thompson’s potential confinement, but rather the university’s failure to take steps preventing the foreseeable attack, she noted.

Whether the university had acted reasonably was still at issue, Zelon said.

“Foreseeability of harm and breach of the standard of care are ordinarily questions of fact for the jury’s determination,” she wrote.

Here, “a reasonable jury could find the university was aware of information demonstrating that Thompson posed a foreseeable risk of violence,” Zelon said. “The record contains extensive evidence that university personnel were aware Thompson had been continuously experiencing auditory hallucinations and paranoid delusions, all of which involved perceived harassment and insults by other students.”

She added:

“We likewise conclude there is a triable issue of fact whether the university acted reasonably in response to the threat Thompson posed. In particular, as the dissent noted in our prior decision, the evidence suggests there may have been an unreasonable failure of communication and lack of coordination among the various professional teams responsible for responding to situations of the type presented by Thompson….

“Defendants may ultimately persuade the finder of fact that Thompson’s conduct was unforeseeable, or that university employees exercised reasonable care under the circumstances. However, this is not one of those exceptional cases where the question of negligence is properly decided by the court as a matter of law.”

The case is Regents of the University of California v. Superior Court, 2018 S.O.S. 5767.

Brian Panish and Deborah S. Chang of Panish, Shea & Boyle in Los Angeles and Alan C. Dell’Ario of Napa were attorneys for Rosen.

The regents were represented by Kenneth A. Maranga, Paul A. Elkhort, Morgan A. Metzger and Dennis Newitt of Maranga Morgenstern in Woodland Hills; Timothy T. Coates and Feris M. Greenberger of Greines, Martin, Stein & Richland in Los Angeles; Charles F. Robinson, Karen J. Perulakis and Norman J. Hamill of the University of California Office of the General Counsel; and Kevin S. Reed of UCLA.