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COLLEGE DID NOT OWE A DUTY OF CARE TO TWO STUDENTS WHO DIED IN A FIRE IN THE OFF-CAMPUS HOUSE THEY WERE RENTING (SECOND DEPT).

The Second Department determined the college (Marist College) did not owe a duty of care to two students (Kerry and Eva) who died in a fire in an off-campus house (Brennan house). The house was on a private-off-campus-housing list made available to students by the college:

“The threshold question in any negligence action is: does defendant owe a legally recognized duty of care to plaintiff?” … . In the context of this action, a critical consideration in determining whether such a duty exists is whether Marist College’s relationship with either the Brennans or Kerry and Eva placed the college in the best position to protect against the risk of harm … . Also relevant is the principle that “one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully” … . …

… .Marist College did not owe a duty of care to Kerry and Eva. Contrary to the plaintiffs’ argument, Marist College demonstrated … that it did not owe a duty to ensure that the off-campus housing listed on its website, which included the Brennan house, complied with all relevant fire safety standards. Even if, in theory, Marist College could have refused to list landlords on its website unless each landlord’s off-campus housing met all relevant fire safety laws and regulations, imposing such a requirement on the college is simply not warranted because the college is not “in the best position to protect against the risk of harm”… . In this regard, it bears recalling that the doctrine of in loco parentis has no application at the college level … . Adult students who chose to live off campus, as well as the private landlords with whom they enter into a contractual relationship, are in the best position to ensure that off-campus apartments and houses have the required number of smoke detectors and other fire safety features. While the risk of fire is all too foreseeable—often with tragic consequences, as this case demonstrates—”[f]oreseeability, alone, does not define duty—it merely determines the scope of the duty once it is determined to exist” … .

… .Marist College also demonstrated … that it did not assume a duty to ensure that the Brennan house was safe for Kerry and Eva to live in, as the college did not engage in any conduct that may have induced Kerry and Eva to forgo some opportunity to avoid risk, thereby placing them “in a more vulnerable position than [they] would have been in had [Marist College] done nothing” … . In fact, the evidence shows, among other things, that Kerry and Eva found the Brennan house because they knew some of the students who had been renting it. Fitzsimons v Brennan, 2019 NY Slip Op 01200,  Second Dept 2-20-19

 

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