38 F.4th 62
9th Cir.2022Background
- Madeleine Barlow, an incoming freshman at the University of Washington (Pullman), was raped by senior student Thomas Culhane shortly after arriving on campus.
- Two other students (D.S. and Q.R.) previously reported unwanted sexual conduct by Culhane at UW’s Vancouver campus; the University investigated and imposed sanctions after Q.R. later requested a formal Title IX investigation.
- Sanctions included a nine-day suspension, alcohol assessment, disciplinary probation, a reflective assignment, and a two-year no-contact order; officials concluded Culhane had difficulty understanding consent.
- While under investigation, Culhane was permitted to transfer from the Vancouver campus to Pullman under a University policy of routinely granting transfer requests, which concerned Q.R.
- Culhane subsequently raped Barlow at an off-campus party; he was later expelled by the University and convicted of second-degree rape.
- Barlow sued UW for negligence and Title IX violations; the district court granted summary judgment to UW on negligence (finding no duty). The Ninth Circuit affirmed the Title IX ruling in a separate memorandum but certified two negligence questions to the Washington Supreme Court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Washington law recognizes a special relationship between a university and its students giving rise to a duty to protect students from foreseeable harm by other students | University owes students a duty to use reasonable care to prevent foreseeable third-party harassment/assault | No special relationship — Johnson controls: college students are adults and not in protective custody, so no duty arises from enrollment alone | Ninth Circuit found state law unsettled, concluded Johnson is not dispositive, and certified the question to the Washington Supreme Court |
| If such a duty exists, what is the measure and scope of that duty? | Duty should be proportional to the university–student relationship and may require reasonable preventive measures, monitoring, and discipline | If any duty exists, it should be narrow; UW’s obligations are limited and do not extend to broad affirmative protections | Court declined to define measure/scope and certified the question for state clarification |
| Whether the University’s knowledge of prior misconduct and its relationship to both victim and perpetrator affect duty analysis | UW’s knowledge of Culhane’s prior misconduct and its supervisory relationship to both students create (or strengthen) a duty to protect | Prior cases like Johnson did not involve a university’s relationship to the bad actor; UW argues no duty even with knowledge | Ninth Circuit noted C.J.C. and other authorities treat knowledge and dual relationships as relevant and therefore certified the legal questions rather than decide them |
Key Cases Cited
- Johnson v. State, 894 P.2d 1366 (Wash. Ct. App. 1995) (held university not in special relationship with students; no duty to protect based on enrollment alone)
- C.J.C. v. Corp. of Catholic Bishop of Yakima, 985 P.2d 262 (Wash. 1999) (church owed duty given relationships to victims and perpetrator and knowledge of risk)
- Helfman v. Northeastern Univ., 149 N.E.3d 758 (Mass. 2020) (adopted special-relationship approach for universities under Restatement (Third))
- Regents of Univ. of Cal. v. Superior Ct., 413 P.3d 656 (Cal. 2018) (recognized university duties to protect students from foreseeable third-party misconduct)
- Ruiz-Guzman v. Amvac Chem. Corp., 7 P.3d 795 (Wash. 2000) (Washington Supreme Court adoption of portions of Restatement (Third) guidance in tort contexts)
- Jordan v. Nationstar Mortg. LLC, 374 P.3d 1195 (Wash. 2016) (Washington Supreme Court applying Restatement (Third) principles)
- Volk v. DerMeerleer, 386 P.3d 254 (Wash. 2016) (discussing duty insofar as Restatement (Third) informs Washington law)
- Centurion Props. III, LLC v. Chi. Title Ins. Co., 793 F.3d 1087 (9th Cir. 2015) (federal precedent endorsing certification where state law is unsettled and policy-sensitive)