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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2583 September Term, 2002 In Banc ___________________________________ UNIVERSITY OF MARYLAND EASTERN SHORE v. ANTHONY F. RHANEY, JR. _______________________________ Murphy, C.J., Davis, Hollander, Salmon, Eyler, James R., Sonner,* Kenney, Adkins, Krauser, Barbera, Sharer, Moylan, Charles E., Jr. (Retired, specially assigned,) JJ. ____________________________________ Opinion by Murphy, C.J. Dissenting Opinion by Sonner, J. Filed: September 27, 2004
* Sonner, J. participated in the hearing and conference of this case while an active member of this Court; he participated in the adoption of this opinion as a retired, specially assigned member of this Court.

This appeal from the Circuit Court for Somerset County arises out of an assault that occurred at approximately 7:00 p.m. on October 29, 1998 in a dormitory room on the campus of the University of Maryland Eastern Shore (UMES). Both the

perpetrator (one Ennis J. Clark) and the victim of the assault, Anthony F. Rhaney, Jr., appellee, were UMES students and shared the dormitory room where the assault took place. This was not

the first assault that Mr. Clark committed on the UMES campus. He had been suspended during the spring semester of 1998 because of his involvement in a series of fights that began on March 13th and continued until the 14th. At the time of his suspension, he

was told that he would be permitted to return "on probation" for the fall semester, provided that he furnished "documentation of having completed professional counseling on conflict resolution." Before returning, Mr. Clark successfully completed a "conflict resolution" program, but he did not receive "professional" counseling.1 Pretrial Proceedings On October 27, 2000, appellee filed a four count complaint against Mr. Clark and the State of Maryland, University of Maryland Eastern Shore, appellant. The two counts against

UMES's Student Code of Conduct differentiates between "counseling by qualified professionals" and "special classes or conferences on anger management." See 31 UNIVERSITY OF MARYLAND EASTERN SHORE STUDENT CODE OF CONDUCT: STUDENT JUDICIAL MANUAL, Sanctions 11, 12 (2003) 1

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appellant (Count III and Count IV) asserted that appellant was negligent for the following reasons: 29. [Appellant] was negligent in that it failed to disclose to [appellee] that his roommate, [Clark], had dangerous and violent propensities, which were known to [appellant] or its agents, servants, and employees. The likelihood of an assault by Clark on [appellee], or others, was foreseeable. 30. [Appellant] was further negligent in that it assigned [Clark] to be a roommate of [appellee], under circumstances when it knew or should have known that [Clark] had dangerous propensities including a history of assault. 31. [Appellant] breached its duty of reasonable care by permitting [Clark] to be in proximity to [appellee], and as a result of the negligence of [appellant], [appellee] was injured and sustained damages. * * * 35. [Appellant] is an institution of higher learning maintaining a campus at Princess Anne, Somerset County, Maryland, for the purpose of educating and housing students, among its other functions. 36. [Appellee] was properly enrolled as a full-time student and residing in a dormitory provided by [appellant]. 37. While lawfully on the portion of the premises to which he was invited and expected to be by [appellant], [appellee] was assaulted and battered by [Clark] as set forth above. 38. [Appellee] was an invitee of [appellant's] property, and [appellant] breached its duty of reasonable and ordinary care to maintain the premises safely for [appellee], and to protect [appellee] against 2

injury caused by unreasonable risk which [appellee], exercising due care, could not discover. 39. [Appellant] breached its duty of care by permitting [Clark] to be in proximity with [appellee]; by failing to protect [appellee] from [Clark's] dangerous propensity; and by failing to warn [appellee] of Clark's dangerous propensities. The allegations in the complaint frame the issues before the court. Bourexis v. Carroll County Narcotics, 96 Md. App. 459, Appellee's claim was based upon his standing as a

473 (1993).

tenant, and as a business invitee.2 Appellant filed a motion for summary judgment. During the

hearing on that motion, appellant's counsel presented the following argument: Under Maryland law, . . . there is no duty to control a third person's conduct so as to prevent personal harm to another unless a special relationship exists between the actor and the third person or between the actor and the person injured. . . . The

The case at bar does not present the contention that the student-college relationship is a "special relationship" that imposes upon appellant different duties than are imposed upon defendants in landlord/tenant and business invitee litigation. Most jurisdictions have rejected the proposition that a college owes an in loco parentis obligation to its students. See e.g. Nero v. Kansas State University, 861 P.2d 758 (Kan. 1993), and the cases discussed therein. Nero involved a negligence action asserted against the university by a coed who was sexually assaulted in the student lounge of a dormitory. The sexual assault was perpetrated by a male student who had been previously convicted of - and disciplined for - committing a rape in his dormitory room. Applying a landowner-invitee analysis, the Supreme Court of Kansas reversed a summary judgment entered in favor of the university. Id. at 780. 3

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University[-]student relationship by itself . . . does not constitute a special relationship. * * * The relationship between the University and Mr. Clark and Mr. Rhaney is best viewed in the context of [a] landlord[-]tenant relationship and . . . there is no special duty owed by a landlord to protect [a tenant] from criminal acts of third parties committed in the common areas within the landlord's control. The duty owed is to exercise reasonable care. If a landlord knows or should know of the criminal activity he then has to take reasonable measures. * * * [Appellee] alleges that the University had prior knowledge about that fight in March, but that's the only knowledge it had of this one fight. I think that this single fight incident is not enough to give rise to a jury question. . . . There is no authority in the law to support Mr. Rhaney's contention that Mr. Clark should not have been allowed to return to the school or campus housing or [that] the University [had a duty] to keep Mr. Clark from Mr. Rhaney. * * * Another thing I would like you to consider is [that] the position [of] the plaintiff is against the public policy the [sic] poor judgment in a fight would be that you are forever barred from University housing. I think it's an untenable thing that the University [must,] just because of one fight[,] follow Mr. Clark to protect people that he comes in contact with both in his classes or otherwise. This could create a huge burden on the State and the University. Appellant's motion for summary judgment was denied and a 4

jury trial followed.3 The Evidence The jury learned that appellee and Mr. Clark lived together without incident for the first two months of the fall 1998 semester. At that time, appellee was an eighteen-year-old first

semester freshman, and Mr. Clark was a twenty-year-old second semester freshman. On October 29, 1998, Mr. Clark moved from the

room he shared with appellee into another dormitory room, where friends of his lived. After Mr. Clark had removed most of his

belongings, appellee and a friend began to rearrange the furniture in the room. They moved Mr. Clark's fish tank, which

sat on top of a desk, and then noticed that the tank was leaking. As appellee set out to wipe up the leaking water, Mr. Clark returned to the room. Appellee testified that Mr. Clark "began yelling irately with vigorous hand gestures," and asked him repeatedly what he had done to the fish tank. Appellee denied breaking it. He

believed Mr. Clark was walking away from the scene, when Mr. Clark turned back and punched appellee in the jaw. Appellee

underwent surgery and had his mouth wired shut for a period of time. UMES. He finished the fall semester, but later withdrew from Mr. Clark withdrew soon after the assault.

Although the issue of Mr. Clark's liability had been resolved against him before trial, he attended and represented himself during the trial. 5

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The jury also heard evidence regarding Mr. Clark's disciplinary history at UMES. He matriculated in the fall of

1997, and, over two days in the following semester, March 13 and 14, 1998, he was involved in fights with other students. Apparently, one altercation began at a party on the 13th and continued on the 14th in front of a campus dining hall. Eight

other people were involved in the second fight, but it caused the immediate suspension of only one other student and Mr. Clark, who pled guilty to "fighting or physically assaulting another" and "disorderly conduct" at a Campus Judicial Council hearing. UMES advised Mr. Clark that he could return for the fall 1998 semester, "with documentation of having completed professional counseling on conflict resolution." He would also In June of

be placed on probation for one year, if he returned.

1998, UMES received a letter that documented Mr. Clark's participation in the "Save Our Streets" program ("S.O.S."), the goals of which were to "resolve conflict verbally, without resorting to the use of violence, to develop more favorable attitudes toward law-abiding behavior, and to make positive choices in response to conflict." Mr. Clark testified that the It appears

program was geared toward street and gang violence.

to have been designed for people thirteen to seventeen years old. The program required Mr. Clark to attend classes that lasted about two hours a day, for two weeks.

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UMES allowed Mr. Clark to return to school, based upon his successful completion of the program. It also allowed him to

live in a dormitory, where he was randomly assigned to be appellee's roommate. occupancy rooms. Appellee elected to abandon his "duty to warn" theory,4 and proceeded on his "duty to protect" theory, by (1) conceding that it was not unreasonable for appellant to allow Mr. Clark to "come to classes, [go] to the library, [and] attend lectures," but (2) arguing that it was unreasonable for appellant to assign Mr. Clark and appellee to the same dormitory room. At the conclusion The dormitory contained single and double

of the plaintiff's case-in-chief, appellant's counsel moved for judgment, arguing that (1) "the same reasons" that entitled appellant to summary judgment "are still valid today," and (2) "just because a young man is involved in one fight doesn't mean he can't ever come back to the school." These arguments were

Appellee agreed that the Code of Federal Regulations prohibited appellant from disclosing Mr. Clark's discipline record. There is, however, a "safety of . . . other individuals" exception to the general prohibition. 34 C.F.R.

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