Pubdate: Mon, 05 Feb 2007 Source: Massachusetts Lawyers Weekly (MA) Copyright: 2007 Lawyers Weekly, Inc Contact: http://www.masslawyersweekly.com/submitletter.htm Website: http://www.masslawyersweekly.com/ Details: http://www.mapinc.org/media/4414 Note: Name and town where you practice must be supplied or publication. Author: Eric T. Berkman Note: Eric T. Berkman, formerly a reporter for Massachusetts Lawyers Weekly, is a freelance writer. Bookmark: http://www.mapinc.org/heroin.htm (Heroin) Bookmark: http://www.mapinc.org/youth.htm (Youth) SCHOOL OFFICIALS NOT LIABLE FOR STUDENT'S DRUG DEATH No 'Special Relationship' Existed Between University And Deceased The estate of a Clark University student who fatally overdosed on heroin in her dorm room could not bring a negligence suit against school officials, a Superior Court judge has ruled. The defendant officials argued that they had no special relationship with the student that would impose a duty of care to protect her from voluntary drug use. Judge Peter W. Agnes Jr. agreed. "After carefully reviewing the circumstances involved in this case and the challenges faced by university officials and staff in attempting to eradicate drug use on college campuses, recognizing a special relationship in this instance would impose on university officials and staff an unreasonable burden that would be at odds with contemporary social values and customs," wrote Agnes, granting the university's motion to dismiss. The 18-page decision is Bash v. Clark University, et al., Lawyers Weekly No. 12-457-07. 'Seminal Decision' Douglas F. Seaver of Boston, who represented the defendants, called the ruling "a seminal decision" for colleges and universities in Massachusetts. "This is the first decision here that really addresses the obligations or responsibilities of a college or university regarding the private activity of students taking illegal drugs on a voluntary basis," noted Seaver. "The judge rightfully recognized that it's unrealistic to expect a college or its staff to monitor students 24/7 to protect them from their voluntary use of drugs." Seaver also predicted that the holding would stand should the ruling ultimately be appealed. Plaintiff's counsel Jeffrey P. Petrucelly of Worcester said his client viewed the ruling as "erroneous." The judge should have followed a series of cases stemming from the Supreme Judicial Court's 1983 Mullins v. Pine Manor College decision, said Petrucelly. "In [Mullins], the SJC held that there is a special relationship between a student and a university, particularly where the student resides in residential housing on campus, like in this case." Petrucelly also contended that the judge used the improper standard for a motion to dismiss. "For a motion to dismiss, if there are any facts in support of any cause of action, the motion to dismiss should be denied," Petrucelly said. Petrucelly also noted that the negligence case against the university itself and several other individual defendants is still moving forward and that his client is moving for reconsideration of Agnes' ruling. Fatal Dose Michele Bash enrolled at Clark University in Worcester as a freshman in August 2003 and moved into on-campus housing owned by the university. Under university policy, students below the age of 21 were not allowed to possess or consume alcohol on school property. The university also had a policy of not tolerating the distribution, possession, sale or use of illegal drugs. Bash encountered personal troubles during her first semester. In September 2003, campus police were called to speak to Bash after she became intoxicated and vomited in a dormitory bathroom. That same month -- and again in October -- her residential advisors made log notations expressing concern over her alcohol use. That fall, Bash's parents found evidence in her online journal indicating possible illegal drug use at Clark. Her father, plaintiff Daniel Bash, contacted the university's counseling center to report his daughter's possible drug use and his concern. On Dec. 8, 2003, the dean of students met with Bash after hearing her name in connection with drug use on campus. Bash denied using drugs. Bash's troubles continued in January when the university placed her on academic probation due to her first-semester grades. She subsequently had several meetings with an academic probation advisor. The advisor noted that Bash did not look well, was not sleeping and was homesick. The advisor also recommended that Bash visit the counseling center and the university's health center. However, the advisor did not share her concerns with Bash's parents. Apparently no further action to assist Bash or monitor her health was taken. On Feb. 5, 2004, the dean of students and the associate dean of students met with Bash in response to additional information the dean had received about campus drug use. This time, Bash admitted that she had indeed tried heroin once in the fall but that it had made her sick, she hadn't used it since, and she was not taking any other illegal drugs. The dean informed Bash's mother of the meeting and assured her that "she was going to get rid of heroin on the Clark campus." During the week of March 1, 2004, Bash's residential advisor reported that Bash had ignored him, looked upset and might be drinking too much. On the evening of March 1, co-defendant Matthew Book provided Bash with heroin purchased on campus. The two then wandered around campus before breaking into a building to watch television. On the morning of March 2, Bash and Book returned to her dorm room and went to sleep. When Book allegedly awoke around noon, Bash was non-responsive. Book called 911. Worcester EMTs performed CPR on Bash in her room and transported her to St. Vincent's Hospital, where she was pronounced dead of an apparent heroin overdose at 12:55 p.m. The plaintiff, acting as executor of his daughter's estate, brought negligence and misrepresentation claims against the university and eight university employees, including the dean of students, the assistant dean and the academic probation advisor. He also brought a negligence claim against Book. No Special Relationship Addressing the defendants' motion to dismiss, Agnes noted that no appellate decisions in Massachusetts speak to whether a special relationship exists between a university and its students that would impose a duty to protect students from the voluntary use of drugs and alcohol. "However, ... this court adopts the reasoning found in a majority of [cases from other jurisdictions] in concluding that Clark owes no duty," said the judge. These other jurisdictions had balanced the foreseeability of harm with the steps that would be necessary to protect students, Agnes observed. In making the same balance, the judge found that Bash's death was not reasonably foreseeable to the university in light of the steps it would have had to take to protect her. "[T]hough there is ample evidence to suggest that Ms. Bash was homesick, or looked mad and upset, without additional facts, the risk of death or serious injury resulting from a drug overdose was not so plainly foreseeable that a special relationship existed between the student and the university," Agnes said. "In addition ... this court has grave reservations about the capacity of any university to undertake measures to guard against the risk of a death or serious injury due to the voluntary consumption of drugs other than those provided by or with the approval of the university." Agnes also distinguished this case from those where courts have found that the university had a special relationship with a student and thus a duty of care. The most prominent of these cases was Mullins v. Pine Manor College. In that case, the SJC found that a student who was raped in her dorm room could sue her college for negligence. "Unlike Mullins, the complaint here does not allege that the ... defendants failed to protect Ms. Bash from third-party criminal acts because there were not any third parties she needed protection from," said Agnes. "Rather, Ms. Bash voluntarily ingested heroin and tragically died as a result of the choice she made." Agnes further pointed out that any recognition of a special relationship -- and hence a duty -- in this case would conflict with the expanded right of privacy that is regarded as the norm in connection with the activities of college students. "The incursion upon a student's privacy and freedom that would be necessary to enable a university to monitor students during virtually every moment of their day and night to guard against the risks of harm from the voluntary ingestion of drugs is unacceptable and would not be tolerated," said the judge, granting the defendants' motion to dismiss the negligence claims. Agnes went on to dismiss the plaintiff's misrepresentation claims as well. - --- MAP posted-by: Beth Wehrman