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Robertson v. State12/10/1999
al beam buttresses, which are more accessible than the structures for most roofs, falls outside the intended and expected use of the Roof. This is not a hidden feature of the building by which an unsuspecting or careless victim is harmed while using the building. The design of this type of roof structure is not an uncommon design. A person could not become confused or allured into the act of climbing the Roof under an illusion of safety like the two swimmer/divers in Murray, supra and Socorro, supra.
Accordingly, we do not view this structure as posing an unreasonable risk of harm. By the concession and analysis made by the plaintiffs, as quoted above from their brief, the building as constructed was not defective so as to make Tech liable to the initial climbers of the Roof. The issue is better considered under the standards for negligence in terms of Tech's duty to its students after the previous accidents involving the Roof. Negligence - University/Student Relationship
In addition to the issue of whether Trey was injured through the instrumentality of an unreasonably dangerous thing in Tech's custody, we are further asked to consider whether Tech was unreasonable in not acting to dissuade its students from climbing on the Roof. After the three prior instances of students climbing the Roof, plaintiffs insist that Tech became obligated to either plant shrubbery around the perimeter of the Natatorium, particularly near the steel beam buttresses, or to fence the area to dissuade access.
In Fox, supra, the university was alleged to have failed to sufficiently supervise and control the L.S.U. rugby club during a rugby tournament on the campus. The plaintiff's injury was blamed upon his fatigue, which was attributed to the rugby club's scheduling of two matches for plaintiff's team on the same day following a late night cocktail party for the teams.
In reviewing the university's duty and the allegation of its failure to provide adequate safety, the supreme court first noted:
Typically, in cases such as this, where the alleged wrongful conduct of the defendant is a failure to act or "nonfeasance," courts have found it necessary for some definite relationship between the parties to exist, such that social policy justifies the imposition of a duty to act upon the defendant. W. Prosser & W. Keaton, The Law of Torts, Sec. 56 (5th ed.)
Fox, supra, at 981. Finding that no special relationship existed and that L.S.U. had no duty to act, the court said:
The fact that a club at L.S.U. invited plaintiff's team to L.S.U. does not make L.S.U. the guardian of all of the participants' safety. Of course, L.S.U. must ensure that its premises are free from defects and are suitable for activities conducted there. The parade ground is used often by students of L.S.U. and the general public for athletic activity. To require L.S.U. to ensure the athletic ability of everyone utilizing this area would be too onerous. Id.
While it can be argued that Fox never addressed the existence and implications of a special relationship because the injured student did not attend L.S.U., the court's analysis broadly examined the university/student relationship from the perspective of L.S.U.'s responsibilities for the safety of all student participants. The university was not placed under an enhanced custodial-like duty to protect against the irresponsible choices of students, and the court found that "L.S.U. had no duty to act." Fox, supra at 982. In the later decision in Pitre, the supreme court stated:
In Fox, supra, this Court acknowledged that universities no longer stand in loco parentis to their students, noting that attempts to
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