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Robertson v. State12/10/1999
, in separate incidents, two students had been seriously injured under almost identical circumstances; after each occurrence Tech officials discussed the problem and decided that no action was necessary. A reasonable person, and even more so a reasonable university, is required to realize that there will be a certain amount of reckless behavior by college students. In Levi v. Southwest Louisiana Elec. Membership Co-op, 542 So.2d 1081, 1086 (La. 1989), the supreme court wrote:
. . . The power company complains that it should not be charged with recognition of any risk that takes effect through a victim's negligence. But the ordinary reasonable person, and even more so the power company, is required to realize that there will be a certain amount of negligence in the world. When the risk becomes serious, either because the threatened harm is great, or because there is an especial likelihood that it will occur, reasonable care may demand precautions against "that occasional negligence which is one of the ordinary incidents of human life and therefore to be anticipated." It is not due care to depend on the exercise of care by another when such reliance is accompanied by obvious danger. (emphasis added). (citations omitted).
The test for determining whether a risk apparent to one in the position of the actor is unreasonable is supplied by the following formula: The amount of precautions "demanded of a person by an occasion is the resultant of three factors: the likelihood that his conduct will injure others, taken with the seriousness of the injury if it happens, and balanced against the interest which he must sacrifice to avoid the risk." (citations omitted).
Under the particular circumstances of this case, the risk and the duty are easily associated. The risk was serious, the harm great, the likelihood of reoccurrence obvious and the cost or sacrifice to avoid further incidents small. There is no policy reason to limit the scope of the protection of the rule of conduct under these specific facts.
When defendants made their motion for summary judgment, plaintiffs were obliged to do more than show some metaphysical doubt as to material facts. Rather, plaintiffs were required to demonstrate that there were facts that could lead a rational juror to find for them. La. C.C.P. art. 966(C)(2).
In the instant case, Tech clearly had a duty to avoid foreseeable injury to its students. All these incidents took place around midnight, after students had been drinking, in some cases at the Student Center, and while they were returning to their dormitories. After two accidents involving serious injuries, Tech officials discussed the problem but took no action. Even after Trey's unfortunate death, Tech took no remedial action until ordered by the Office of Risk Management to erect a fence around the Natatorium.
The proper question to consider is whether there is any genuine issue of material fact concerning defendants' negligence. In the present posture of this case, reasonable minds could differ as to the inference of the evidence. Put another way, the pertinent question for summary judgment is whether rational minds could differ as to the reasonableness of defendants' conduct or inaction. Under the specifics of this case, reasonable minds could differ.
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