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.