2022 COA 57
Colo. Ct. App.2022Background
- John Doe and Jane Roe were DU undergraduates; Jane accused John of non-consensual sexual contact after a March 2016 encounter; DU’s OEO investigated and found John responsible, resulting in immediate expulsion.
- DU’s OEO Procedures (2015–2016) promise investigations that are “thorough, impartial and fair,” describe investigator neutrality, witness interviews, review of documents (including SANE materials), preliminary and final reports, and an Outcome Council process with final appeals.
- During DU’s investigation, investigators interviewed eleven witnesses identified by Jane but initially declined to interview most witnesses John requested; John’s requested witnesses included two dormmates present around the incident.
- Investigators relied on portions of a SANE report that Jane submitted but did not have the full SANE report; the final report concluded non‑consensual sexual contact by a preponderance of the evidence and DU dismissed John.
- John sued (federal and state claims); after the Tenth Circuit reversed summary judgment on his Title IX claim, Colorado Court of Appeals addressed (1) whether OEO Procedures are enforceable contract terms and (2) whether DU owed an independent tort duty of care in sexual‑misconduct adjudications.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are DU’s OEO Procedures (promise of a “thorough, impartial and fair” investigation) sufficiently definite to be enforceable as contract terms? | The phrase, read with the detailed investigative steps in OEO, creates a definite contractual obligation enforceable under Colorado law. | The promise is too vague and aspirational to create an enforceable contractual duty. | The court: Yes. The promise, read in context with the specific procedural provisions, is sufficiently definite to be enforced. |
| Did DU breach the contract and implied covenant (good faith and fair dealing) by its investigation/adjudication? | DU failed to provide equal opportunity to be heard, declined to interview John’s witnesses, and relied selectively on SANE material—creating triable issues. | DU argued its process comported with the Procedures and summary judgment was appropriate. | The court: Genuine issues of material fact exist; summary judgment improper on both breach and implied‑covenant claims against DU. |
| Does a private university owe an independent tort duty to adopt fair procedures and implement them with reasonable care in student sexual‑misconduct investigations? | Yes: procedurally flawed investigations foreseeably cause severe, non‑physical but lasting harms (expulsion, stigma), so public‑policy factors support a duty. | DU contended tort duties generally protect against physical harm and that recognizing a negligent‑investigation tort is inappropriate. | The court: Yes as to the university. DU owes a tort duty to adopt fair procedures and implement them with reasonable care; triable issues prevent summary judgment. |
| Do individual trustees/employees/agents owe the same tort duty? | (John) Individual defendants participated in the investigation and adjudication. | Imposing such a burden on individuals is unfair; they cannot pass costs on and consequences weigh against recognizing a duty. | The court: No. Individual trustees/employees/agents do not owe the separate tort duty; summary judgment affirmed for them. |
Key Cases Cited
- W. Distrib. Co. v. Diodosio, 841 P.2d 1053 (Colo. 1992) (elements of breach of contract)
- CenCor, Inc. v. Tolman, 868 P.2d 396 (Colo. 1994) (student–institution relationship can be contractual)
- Stice v. Peterson, 355 P.2d 948 (Colo. 1960) (contract terms must be sufficiently definite to be enforced)
- HealthONE v. Rodriguez, 50 P.3d 879 (Colo. 2002) (public‑policy factors for recognizing tort duties)
- Taco Bell of Am., Inc. v. Lannon, 744 P.2d 43 (Colo. 1987) (weighing burdens and consequences when imposing duties)
- Univ. of Denver v. Whitlock, 744 P.2d 54 (Colo. 1987) (student–university relationship not a special relationship for duty analysis)
- Ad Two, Inc. v. City & Cnty. of Denver, 9 P.3d 373 (Colo. 2000) (contract interpretation is a question of law)
- Doe v. Univ. of Denver, 1 F.4th 822 (10th Cir. 2021) (reversed summary judgment on Title IX claim; identified investigative deficiencies)