The plaintiff, a female student at Pine Manor College (college), was raped on campus by an unidentified assailant who was never apprehended. She commenced this action against the college and its vice president for operations, William P. Person, to recover damages for injuries suffered. The case was tried before a jury in the Superior
There was evidence of the following facts. Pine Manor College is a four-year college for women located in the Chestnut Hill section of Brookline. In 1977, approximately 400 students attended the school. The campus is surrounded on all sides by a six-foot high chain link fence, except for an area on either side of the main entrance to the campus where the fence stands four feet tall. The college's dormitories are clustered together in three villages. Each village is comprised of a commons building and a number of separate dormitory buildings. The buildings are arranged to form a square. To gain access to a dormitory, a student must enter an enclosed courtyard through either the commons building or one of three exterior gates. Between 5 P.M. and 7 A.M., these gates and the door to the commons building are locked. Students enter their dormitory through locked doors which open directly into the courtyard. Each student had one key which unlocked the doors to her commons building, her dormitory building, and her individual room.
After 8 P.M., all visitors were admitted by a security guard at the main entrance to the campus. The guard would direct them to the appropriate commons building. At the entrance to the commons building, visitors would be stopped by a student on duty and would be registered.
At the time of the rape, the college had two guards on duty after midnight. One guard was stationed in an observation post at the main entrance. The second guard was assigned to patrol the campus. He was responsible for making rounds to the villages every fifteen to thirty minutes to check the doors and gates to see that they were locked. The college had no formal system of supervising the guards. Rather, the director of security at the college would make random checks on their work.
Mullins was a first-year student and, as required by the college, she lived on campus. Her dormitory housed thirty women. Under college regulations, male visitors were permitted to stay overnight.
On December 11, 1977, Mullins returned to her dormitory at approximately 3 A.M. with two friends. It was a bitter cold night. They entered the village through one of the exterior gates to the courtyard. It was unlocked. They opened the door to their dormitory and proceeded to their rooms. After changing into her night clothes, Mullins, leaving the door to her room open, went to talk with a friend who resided in the room next door. They talked for a few minutes, apparently near the open door to the friend's room. Mullins returned to her room, locked her door, and went to sleep. Between 4 A.M. and 4:30 A.M., she was awakened by an intruder. He asked her where her car was located, and she responded that she did not have a car. The
Pine Manor is located in an area with relatively few reports of violent crime. In the years prior to this attack, there had been no incidents of violent crime on the campus. The record discloses, however, that one year before the attack a burglary had occurred in one of the dormitory buildings. Additionally, the evening before the rape, a young man scaled the outer fence around the campus and walked into the commons building of Mullins's village, which was the first building he saw. The door to the building was open. The college is also located a short distance from bus and subway lines which lead directly to Boston.
Additional facts, including the testimony of expert witnesses, will be discussed as they become relevant.
1. Duty to protect against criminal acts. The defendants argue that they owe no duty to protect students against the criminal acts of third parties. They rely on the general proposition that there is no duty to protect others from the criminal or wrongful activities of third persons. See Restatement (Second) of Torts § 314 (1965). Cf. W. Prosser, Torts § 33, at 173-174 (4th ed. 1971) (actor may usually assume others will obey criminal law). But see Restatement (Second) of Torts §§ 302B, 314A & 448 (1965). We conclude that this rule has little application to the circumstances of this case.
The duty of due care owed the plaintiff by the defendants in the present case can be grounded on either of two well
This consensus stems from the nature of the situation. The concentration of young people, especially young women, on a college campus, creates favorable opportunities for criminal behavior. The threat of criminal acts of third parties to resident students is self-evident, and the college is the party which is in the position to take those steps which are necessary to ensure the safety of its students. No student has the ability to design and implement a security system, hire and supervise security guards, provide security at the entrance of dormitories, install proper locks, and establish a system of announcement for authorized visitors.
Of course, changes in college life, reflected in the general decline of the theory that a college stands in loco parentis to its students, arguably cut against this view.
The duty of care in this case can be grounded in another theory. It is an established principle that a duty voluntarily assumed must be performed with due care. Black v. New York, N.H., & H.R.R., 193 Mass. 448 (1907). See Phillips v. Chicago Hous. Auth., 89 Ill.2d 123 (1982); Cross v.
Colleges generally undertake voluntarily to provide their students with protection from the criminal acts of third parties. The evidence warrants the conclusion that Pine Manor undertook such a duty. It is clear that this undertaking by Pine Manor was not gratuitous.
We recognize that the mere fact that Pine Manor had voluntarily undertaken to render a service is not sufficient to
These two principles of law provide a sufficient basis for the imposition of a duty on colleges to protect their resident students against the criminal acts of third parties. Colleges must, therefore, act "to use reasonable care to prevent injury" to their students "by third persons whether their acts were accidental, negligent, or intentional." Carey v. New Yorker of Worcester, Inc., 355 Mass. 450, 452 (1969).
We reject the argument advanced by the college and Person that the criminal attack here was not foreseeable. This contention is untenable in light of Person's testimony which admitted that he had foreseen the risk that a student at Pine
The college and Person, however, urge us to adopt an arbitrary limitation on liability by requiring that a student must introduce evidence of prior criminal acts on the campus. They rely on cases from other jurisdictions which hold that an owner or occupier of land is under no duty to protect persons lawfully on the premises against the criminal acts of third persons unless prior criminal acts occurred on the premises. See e.g., Riley v. Marcus, 125 Cal.App.3d 103, 109 (1981); Scott v. Watson, 278 Md. 160, 169 (1976); Gulf Reston, Inc. v. Rogers, 215 Va. 155, 157-159 (1974). We choose not to follow those cases, at least in the circumstances before us.
2. Sufficiency of the evidence. We construe the evidence most favorably to Mullins to determine "whether `anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the plaintiff.'" Poirier v. Plymouth, 374 Mass. 206, 212 (1978), quoting Raunela v. Hertz Corp., 361 Mass. 341, 343 (1972). "We are mindful that the inferences must be based on `probabilities rather than possibilities' and not the result of `mere speculation and conjecture.' Alholm v. Wareham, 371 Mass. 621, 627 (1976)." International Fidelity Ins. Co. v. Wilson, 387 Mass. 841, 848 (1983).
a. Negligence. Usually "the question of negligence is one of fact for the jury. Only when no rational view of the evidence warrants a finding that the defendant was negligent may the issue be taken from the jury. Luz v. Stop & Shop, Inc. of Peabody, 348 Mass. 198, 203-204 . Beaver v. Costin, 352 Mass. 624, 626 ." Zezuski v. Jenny Mfg. Co., 363 Mass. 324, 327 (1973). There was sufficient evidence from which the jury could have concluded that the defendants were negligent.
Person admitted that he designed and supervised the installation of the security system. He acknowledged that he was responsible for establishing the patrol pattern and the network of locks. The jury could have found the following deficiencies in the college's security system. An observation post near the main entrance is situated at such a distance
The jury could have found that the negligence of the defendants caused the plaintiff's injury. First, the chain of events resulting from the defendants' negligence clearly extended to permitting the assailant to reach the point where he stood outside Mullins's locked door. An expert witness testified that the deficiencies of the college's security system were a substantial cause of the attack. He testified that an assailant could gain access easily to the campus as a result of the low fence near the front entrance, the placement of the observation post, and the absence of adequate patrols around the perimeter. Once an intruder was on the campus, the courtyard was readily accessible. The expert testified that the exterior gates were like stepladders and could be scaled without any difficulty. A photograph of a gate introduced in evidence confirmed this testimony. Moreover, Mullins testified that she and her friends entered the courtyard through an open gate. She also testified that she and the assailant later left the courtyard through a gate that was not properly secured. The design of those gates, as well as the fact that they were not tightly secured, was properly attributable to the negligence of the defendants.
We think also that the jury were entitled to discount the possibility that the assailant was a person lawfully on the premises. The only fact in the record which suggests this possibility is that males were permitted to stay overnight in Mullins's dormitory on weekends. There is no evidence in the record, however, that any male visitors in fact stayed overnight on the night of the rape.
The jury also could have found that the defendants' negligence permitted the assailant to enter Mullins's room. An expert witness testified that the lock on the door was inadequate. There was ample evidence indicating that the lock on Mullins's door could be picked with a credit card. An expert witness also pointed to the absence of either a chain or a
The few minutes Mullins spent talking with a friend did not break the chain of causation. Mullins testified that she went next door for a few minutes. The door to her friend's room was open as they talked. A photograph introduced in evidence reveals that Mullins's room formed the end of a narrow dead end corridor. The view out of her room is directly down the length of the corridor to a lounge room. Her friend's door was located a few feet down the hall toward the lounge room. Her door was at a right angle with Mullins's door. Therefore, the assailant could not have entered Mullins's room without passing directly in front of Mullins and her friend as they were talking. Given these facts, the jury could have concluded that the assailant would have been detected if he had attempted to slip into Mullins's room during the few minutes that she spent next door.
Furthermore, Mullins lived in a single room. The opportunities for concealment in a single room of this type are exceedingly limited.
Second, the jury could have concluded that reasonable persons in the position of the defendants would have hired two additional guards. These additional guards would have permitted three guards to be patrolling the campus at any one time. A guard would have been beginning a round of the campus every five to ten minutes. Mullins testified that she and the assailant spent at least twenty minutes outside. The jury could have inferred that the actual period was longer. Mullins also testified that the assailant marched her back and forth in front of the refectory for a considerable period of time. From these facts, the jury could have concluded that it was more probable than not that, had the college deployed three guards, at least one of those guards would have seen Mullins, who had a pillow
The jury also could have considered the fact that the refectory should have been locked. Had it been locked, the assailant would have been faced with a choice. Given the bitter cold temperature, the rape most likely would not have been performed outdoors.
c. Proximate causation. The college and Person next argue that the judge should have ruled, as matter of law, that the intervening criminal act of an unknown third person was a superseding cause which severed the chain of proximate causation. Our holding that the defendants had foreseen the risk of criminal attack largely disposes of the issue. The act of a third party does not excuse the first wrongdoer if such act was, or should have been, foreseen.
3. Liability of an officer of a charitable corporation in tort. Person contends that he is entitled to the protection of the charitable immunity doctrine and that he cannot be held liable for mere negligence in the performance of a discretionary function. These questions were not raised below and, if we followed our usual practice, we would not consider them on appeal. However, because the questions presented are of some public importance and the result we reach is not changed by our consideration of them, we choose to state our views briefly. Royal Indem. Co. v. Blakely, 372 Mass. 86, 88 (1977).
The common law doctrine of charitable immunity provides that charitable institutions are immune from liability for their torts. McDonald v. Massachusetts Gen. Hosp., 120 Mass. 432, 436 (1876). The general rule, however, is that an agent is not entitled to the protection of his principal's immunity even if the agent is acting on behalf of his principal. Restatement (Second) of Agency § 347 (1) (1958). In 1971, the Legislature abolished entirely the defense of charitable immunity from tort liability "if the tort was committed in the course of activities primarily commercial in character even though carried on to obtain revenue to be used for charitable purposes." G.L.c. 231, § 85K, inserted by St. 1971, c. 785, § 1. "[I]f the tort was committed in the course of any activity carried on to accomplish directly the charitable purposes" of a charitable institution, liability may not exceed $20,000. Id. This reflects a legislative determination to confine narrowly the doctrine of charitable
We also reject the contention that an officer of a charitable institution may not be held liable for the negligent performance of a discretionary function without evidence of bad faith. Person relies primarily on our decision in Whitney v. Worcester, 373 Mass. 208, 217-218, 220-221 (1977),
O'CONNOR, J. (dissenting).
I agree with the opinion of the court except for its conclusion that the evidence warrants a finding that the defendants' negligent acts or omissions proximately caused the plaintiff's injury.
The court holds that the jury could have found that the assailant was an intruder, rather than a guest whose entrance into the dormitory was lawful, and that the assailant gained
The next inquiry is whether, if the assailant was a lawful visitor, the jury could have found that he gained entrance to the plaintiff's room due to the defendants' negligence. I agree that the jury could have found that the system for locking the room door was inadequate due to the defendants' negligence, but I do not agree that the jury could have found that entry into the room was gained by disengaging a lock. The plaintiff testified that when she returned to her dormitory at about 3 A.M., she entered her room and changed into pajamas. She then went to her friend's room to talk for a few minutes, leaving her door open. The door to her friend's room was located a few feet down the hall at a right angle with the plaintiff's door, and was open while they talked. The court concludes that the assailant could not have entered the plaintiff's room without passing directly in front of the plaintiff and her friend as they were talking, and that this warranted a finding that the assailant would have been detected if he had attempted to slip into the plaintiff's room during the time she spent next door.
The court asserts that the opportunities for concealment in a single room of the type occupied by the plaintiff "are exceedingly limited," and states in a footnote that the room did not have a bathroom and "[t]he dormitory itself is of modern construction and appears to be rather stark." The court further states that "[t]he assailant ... did not awaken Mullins until well over an hour after she went to sleep," and concludes that these facts support the view that the assailant entered the room after the plaintiff had returned from her friend's room and locked her door. Supra at 60. The facts that the room was a single room without a bathroom, and that the dormitory building was modern and stark, do not warrant an inference that the construction and furnishing of the room made it unsuitable for a hiding place. The plaintiff testified on direct examination that the assailant awakened her between 4 A.M. and 4:30 A.M. On cross-examination she testified that between 4 A.M. and 4:30 A.M. was a guess on her part, and that she "didn't exactly ask him what time it was." The plaintiff's testimony that she returned to the dormitory at 3 A.M., Changed into pajamas, went next door for a few minutes, and guessed the assailant awakened her between 4 A.M. and 4:30 A.M. does not support the court's assertion that the plaintiff was asleep for "well over an hour" before she was awakened. Even if such an inference were warranted, the delay was no more indicative of forced entry into the room than of the patience of the assailant. I agree that it is speculative to say that the assailant entered the room while the plaintiff was next door, but it is also speculative to say that the assailant entered after the door was locked. The burden was on the plaintiff to establish, beyond speculation, that entry occurred after the door was locked. She failed to do so.
The plaintiff testified that en route from the dormitory to the refectory, she and the assailant proceeded underneath the chains of a courtyard gate which was not adequately secured, and that the door to the refectory, where the rape occurred, was unlocked. Even if the rape would not have occurred but for those conditions, the jury was unwarranted in finding that those conditions proximately caused her injury. The plaintiff had the burden of proving "that the defendant[s] took a risk with respect to the plaintiff's safety that a person of ordinary prudence would not have taken, and that the plaintiff suffered a resulting injury that was within the foreseeable risk." Cimino v. Milford Keg, Inc., 385 Mass. 323, 330 (1982). Carey v. New Yorker of Worcester, Inc., 355 Mass. 450, 454 (1969). The foreseeable risk of an inadequately secured gate is that an intruder might enter the premises for mischievous purposes. The jury could not properly have found that there was a foreseeable
The plaintiff produced an expert witness who testified that there was a causal relationship between the defendants' negligence and the rape of the plaintiff. An expert's opinion on the issue of causation has no probative value if it rests on speculation alone. LaClair v. Silberline Mfg. Co., 379 Mass. 21, 32 (1979) ("[a] verdict may not be based on conjecture and surmise, and expert opinion does not help if it is demonstrated that it rests on speculation"). Carey v. General Motors Corp., 377 Mass. 736, 741 (1979) ("expert testimony on the issue of causation does not help when it is based on speculation alone"). Swartz v. General Motors Corp., 375 Mass. 628, 633 (1978) (same as LaClair). Currie v. Lee Equip. Corp., 362 Mass. 765, 768 (1973). Kennedy v. U-Haul Co., 360 Mass. 71, 73-74 (1971). "A mere guess or conjecture by an expert witness in the form of a conclusion from basic facts that do not tend toward that conclusion any more than toward a contrary one has no evidential value." Kennedy v. U-Haul Co., supra. The facts adduced at trial did not tend any more toward the conclusion that the plaintiff's rape was caused by the defendants' negligence than to the contrary conclusion. Therefore, the expert's opinion testimony had no probative value.
In my opinion the plaintiff failed to introduce sufficient evidence to warrant a finding that action or inaction of the defendants was the proximate cause of her injury, and the defendants were entitled to directed verdicts and judgments in their favor.
It is also not clear how close in time the criminal act must be. Would the attack on a student in 1977 be sufficient to impose a duty today or in another five years? We note that some courts have adopted an approach that focuses on all the circumstances of the case even in the context of the relationship between a landlord and tenant. Trentacost v. Brussel, 82 N.J. 214, 223 (1980) (one attempted theft coupled with high level of criminal activity in general area held sufficient to establish foreseeability). Braitman v. Overlook Terrace Corp., 68 N.J. 368, 382-383 (1975) (notice of defective lock and prior criminal activity in vicinity of defendant's building held sufficient). Samson v. Saginaw Professional Bldg., Inc., 393 Mich. 393, 404-409 (1975) (no evidence of prior acts required; notice of danger held sufficient).
Also, evidence that the college replaced its one-key system with a two-key system and changed the procedures for checking visitors at the security gate was admitted for the purpose of demonstrating feasibility. The defendants have not argued any of these points before this court.