May 25, 2023
According to New York’s Appellate Division, Third Department, the University of Rochester (“University”) would have a common law duty to take appropriate responsive action against “credible reports of ongoing and pervasive criminal conduct against students, perpetrated on campus by other students within the university’s control.” Rebekah Brown v. University of Rochester, et al. (N.Y. App. Div. 3d Dep’t, May 18, 2023).
The complaint, brought under New York’s “Child Victims Act,” CPLR 214-g, alleged that the Plaintiff, a seventeen-year-old freshman at the University of Rochester, was sexually assaulted on campus by members of a defendant fraternity on campus in the fall of 1984. After two separate assaults reportedly were perpetrated by fraternity members, plaintiff alleged that she informed a University counselor about the sexual assaults, and that that counselor failed to report her claims to University officials, campus security, or local law enforcement. Plaintiff also alleged an ongoing pattern of sexual assaults of female students on or around the subject fraternity’s “fraternity house.” Plaintiff further alleged that the University “received credible reports” of the fraternity’s practice of spiking alcoholic beverages with drugs, incapacitating female partygoers, some of whom were under 18, and allowing fraternity members to assault those women. However, according to the plaintiff, the University failed to notify authorities, or to properly investigate those reports.
The University moved to dismiss the complaint, which motion was, in large part, denied by the trial court. The Third Department, taking the matter up on appeal, reasoned that the position of a university was distinct, and that the “university/student relationship” was more significant than that of a landlord and tenant. “A university is in a unique position to establish student conduct policies and to take affirmative disciplinary action against fraternities for ongoing illegal conduct perpetrated by their members while on campus.”
Thus, the Third Department will allow the complaint to continue and the matter to be litigated, finding that the alleged facts were sufficient to state a claim under New York law. This decision, arising under the Child Victims Act, may provide some notice as to how New York’s appellate courts will deal with claims by former university students, both children and adults, who allege historical assaults, both under the Child Victims Act and the Adult Survivors Act.
For more information on this litigation, please contact any member of our Abuse Liability Practice Group.