A California appellate court has tossed claims against the University of Southern California brought by a woman who was injured after being bumped off a makeshift platform while dancing at an off-campus fraternity party.
According to the decision, Carson Barenborg, who was 19 at the time of the Oct. 10, 2013, party at the USC chapter of the Sigma Alpha Epsilon fraternity, had consumed cocaine and “five to seven” alcoholic beverages before arriving at the party and drinking more.
“In these circumstances, any reliance on USC or [its department of public safety] to protect her from harm was unreasonable,” wrote Judge Gary Micon of the Los Angeles Superior Court, sitting pro tem in Division Four of the Second District Court of Appeal.
“USC’s failure to prevent or curtail the party allowed the party to occur and continue, but neither created the party nor increased the risks inherent in the party,” he wrote.
Micon’s decision, which was joined by Second District Justices Nora Manella and Audrey Collins, reverses a summary judgment ruling from Los Angeles Superior Court Judge Ruth Ann Kwan, who had found there were triable issues over whether USC owed Barenborg a duty of care.
The appellate opinion published Wednesday relied heavily on a recent California Supreme Court case delving into when universities have a “special relationship” with students. In Regents of the University of California v. Superior Court, a case brought by a UCLA student who was stabbed in a chemistry lab by a classmate, California’s high court found that colleges owe a duty to protect students from foreseeable acts of violence “in the classroom and during curricular activities.”
In the USC case, the Second District noted that Barenborg wasn’t a USC student, but that she was claiming a special relationship with the school based on her being invited onto property controlled by the school—Greek Row near campus. USC public safety officers had come to the party and asked organizers to keep down noise levels, but her lawyers argued they should have shut it down altogether because it violated school rules about party hours and alcohol consumption. The court, however, concluded that the school had no such duty.
“Although USC’s policies governing use of alcohol and social events applied to SAE, those policies, along with DPS patrols to enforce those policies, did not constitute an exercise of control over the property,” Micon wrote. “A college has little control over such noncurricular, off campus activities, and it would be unrealistic for students and their guests to rely on the college for protection in those settings.”
The appellate opinion was issued Nov. 27 and published Wednesday after the school and defense counsel organizations—the Association of Southern California Defense Counsel and the Association of Defense Counsel of Northern California and Nevada—petitioned the court to publish it.
San Diego appellate specialist Martin Buchanan, who is handling the case for Barenborg alongside lawyers at Girardi | Keese, said the plaintiff’s team is reviewing the opinion and considering its options. An appeal in the case against the fraternity, which won summary judgment at the trial court, is fully briefed and awaiting oral argument. “The SAE appeal raises an issue of first impression in California regarding the duty owed by a national fraternity to social invitees of its local chapters,” Buchanan said.
USC’s counsel, Dean Dennis of Hill, Farrer & Burrill, didn’t respond to a request for comment.