By: Matthew Blake
More than six years after a UCLA chemistry lab student repeatedly stabbed his classmate’s throat with a kitchen knife, the state Supreme Court has agreed to hear a lawsuit regarding whether the university did what it could to prevent the almost fatal attack.
The high court unanimously granted on Wednesday plaintiff Katherine Rosen’s petition to review a published and split 2nd District Court of Appeal decision from October that found colleges and universities have no obligation to protect their students from third party criminal acts, even if another student was accused of the crime. The Regents of the University of California v. Superior Court, S230568.
The case will mark the first time since the 2007 Virginia Tech massacre that the state high court addresses public higher education’s student safety duties.
Lawyers sympathetic to Rosen’s position, including James V. Kosnett a plaintiff lawyer in education litigation at Kosnett Law Firm, argued that after the Virginia Tech shooting, campuses, including UCLA, assured students improved campus safety and should be held liable for not delivering on that promise.
Robert R. DeKoven, a California Western Law Professor, said a “lot of schools are hanging in limbo” about their duty to protect students.
DeKoven, though, noted it may be unreasonable to expect universities to avert each campus attack, and suggested a legislative fix to address higher education’s ambiguous safety duties.
An honors student who now attends medical school in New York, Rosen was attacked in 2009 by classmate Damon Thompson, who university psychologists treated at the time for paranoia and hallucinations. Rosen sued in 2010, claiming UCLA personnel knew enough about Thompson to reasonably foresee his violent outburst.
Los Angeles County Superior Court Judge Gerald Rosenberg ruled in 2014 that a jury ought to decide whether UCLA’s psychological treatment of Thompson, who a criminal court found not guilty by reason of insanity, meant the university knew enough to keep Thompson away from other students.
But appellate Justice Laurie D. Zelon’s opinion noted Thompson consistently told school psychologists he would not harm anyone. Zelon’s ruling also focused on Ochoa v. California State University, a 1999 state appellate decision about school liability for a soccer injury, that found, unlike high school students, college students voluntarily partake in activities and must bear the risk of their participation.
In a dissent amply cited by plaintiff’s petition, Justice Dennis M. Perluss quoted from UCLA’s 2008 brochure, written in the wake of the Virginia Tech shooting, that read, “Welcome to one of the most secure campuses in the country.”
Perluss concluded such assertions were not merely aspirational but created a special relationship between school and student.
Messages left with UCLA outside counsel Timothy T. Coates of Greines, Martin, Stein & Richland LLP were not returned.
Rosen lawyer Brian Panish, an attorney at Panish, Shea & Boyle LLP, said on Wednesday the issue of campus safety is more important than ever, adding, “UCLA says it is a safe school, but they are hiding behind this technical claim of immunity.”
Rosen is also represented on appeal by solo practitioner Alan Charles Dell’Ario.
I am an alumni adviser for a fraternity at USC. The chapter was involved in a disciplinary action with the university. After receiving unusually harsh and unfair sanctions from a student/faculty review committee, our chapter sought counsel from James Kosnett. He attended a hearing with USC administrators, and prepared a compelling written appeal.