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Stanton v. University of Maine
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2001 ME 96
Docket:	Cum-00-513	
Argued:	May 17, 2001
Decided:	June 26, 2001	




	[¶1]  Plaintiffs Dolores Stanton and her parents appeal from a
summary judgment entered in the Superior Court (Cumberland County,
Mills, J.) in favor of defendant University of Maine System.  Plaintiffs argue
that the court erred in granting defendant's motion for summary judgment
on their claims of negligence and implied contract.  We agree that the court
erred in ordering summary judgment on the negligence claim, and we
vacate as to that claim.
I. Background
	[¶2]  The facts taken in the light most favorable to plaintiffs may be
summarized as follows: Plaintiff Dolores Stanton, age 17, was a special
student, i.e., one who does not have a high school diploma but takes classes
at the University.  She attended a pre-season soccer program at the
University of Southern Maine in Gorham, that ran from August 24, 1997,
through September 1, 1997.  Student athletes participating in the pre-
season sports training program were allowed to stay in dormitories on the
campus. Plaintiff was assigned to stay with another girl in the Upton-
Hastings dorm for the duration of the one-week program, but had difficulty
with the roommate and was reassigned to another room in the Robie-
Andrews dorm, where twelve other students were assigned. 
	[¶3]  On August 28, plaintiff went to a fraternity party. She met a
young man, who told her as she was leaving the party that he had friends at
the Robie-Andrews dorm and would walk back with her. When they arrived,
she used her key to open the door and he walked in and rode up the
elevator with her.  She got off at her floor and he stayed on. She went to her
room, opened the door with a key, propped the door open and went to the
window.  When she turned around, the young man was there.  He entered
the room and sexually assaulted her.
	[¶4]  Statistics prepared by the University showed that the last
reported rape on the Gorham campus occurred in 1991 and that no rapes or
sexual assaults were reported from 1992 to 1997.  The following security
measures were in place:  Students living in the dorms were provided with a
key to the dorm entrance and to their own rooms. Each dorm room was
equipped with active telephone service to which students could connect
their own phones. Both inside and outside the front entrance to Robie-
Andrews were telephones that provided direct access to the University
police 24-hour dispatch. When activated, the telephones tell the police
dispatcher the location of the person using the phone even if the person
using it is unable to speak.  Each dorm had resident assistants (RAs) living in
the dorms and, in 1997, there was one assigned to each of the six floors of
Robie-Andrews. The RAs arrived on August 21, 1997, but plaintiff on no
occasion saw or met with the RA.  There were no group meetings when
plaintiff arrived for pre-season training, either with the residential life staff
or the soccer team in which the pre-season students received instruction on
rules and regulations regarding safety within the USM residential hall
facilities. There were no signs posted in the dorms informing residents of
who should or should not be allowed in the dorms.
	[¶5]  In 1999, Dolores Stanton and her parents filed this action
against the University of Maine System for negligence, negligent infliction of
emotional distress, and breach of an implied contract.{1}  After discovery, the
University filed a motion for summary judgment.  The court granted
summary judgment in favor of the University on all three counts and
plaintiffs appeal on the negligence and implied contract claims.  
II. Standard of Review
	[¶6]   We review the Superior Court's "entry of a summary judgment
for errors of law, viewing the evidence in the light most favorable to the
party against whom the judgment was entered."  Rodrigue v. Rodrigue, 1997
ME 99, ¶ 8, 694 A.2d 924 (citation omitted).  Summary judgment will be
upheld if the evidence produced demonstrates that there is no genuine
issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.  Id.  "To survive a defendant's motion for
summary judgment, a plaintiff must produce evidence that, if produced at
trial, would be sufficient to resist a motion for a judgment as a matter of
law." Id.  A plaintiff must establish a prima facie case for each element of the
cause of action.  Champagne v. Mid-Maine Med. Ctr., 1998 ME 87, ¶ 9, 711
A.2d 842.  "A judgment as a matter of law in a defendant's favor is proper
when any jury verdict for the plaintiff would be based on conjecture or
speculation." Id. When the court rules on a motion for summary judgment, it
is to consider only the portions of the record referred to, and the material
facts set forth, in the statements of material facts pursuant to M.R. Civ. P.
7(d).{2} Handy Boat Serv., Inc. v. Prof'l Servs., Inc., 1998 ME 134, ¶ 16, 711
A.2d 1306 (citation omitted).  
III. Negligence
	[¶7] A prima facie case of negligence requires a plaintiff to establish
the following elements:  a duty owed, a breach of that duty, and an injury to
the plaintiff that is proximately caused by a breach of that duty. Searles v.
Trs. of St. Joseph's Coll., 1997 ME 128, ¶¶ 5, 6, 8, 695 A.2d 1206.  The
University based its motion for summary judgment on the contention that
the University owed no duty of care and that, even if it owed a duty, it
fulfilled that duty by providing a dormitory that was reasonably safe and
secure in light of the circumstances.  Plaintiffs argue that the court erred in
determining that the University owed no duty to plaintiff student under the
existing circumstances,  and we agree.
	[¶8]  Whether a plaintiff is owed a duty of care is a matter of law. Id.
¶ 5. We have determined that a duty founded on premises liability exists
between a student and a college or other educational institution.  A student
attending an educational institution has the legal status of a business invitee.
Schultz v. Gould Acad., 332 A.2d 368, 370 (Me. 1975) (citing Isaacson v.
Husson College, 297 A.2d 98, 103 (Me. 1972); Jay v. Walla Walla College,
335 P.2d 458 (Wash. 1959)).  The University owed plaintiff, as a business
invitee, "a duty to exercise reasonable care in taking such measures as were
reasonably necessary for her safety in light of all then existing
circumstances."  Schultz, 332 A.2d at 370 (finding a duty owed to a 16-year-
old student at Gould Academy who was assaulted by an unidentified intruder
who entered her dorm room while she was sleeping). More particularly
stated, "the law of Maine is that the owner of premises owes a legal duty to
his business invitees to protect them from those dangers reasonably to be
foreseen."  Id. at 371. 
	[¶9]  In this case, the court found that the danger was not
foreseeable.  The court based its determination on our opinion in 
Brewer v. Roosevelt Motor Lodge, 295 A.2d 647 (Me. 1972).  It concluded
that, as in Brewer, "the defendant in this case 'was under no obligation to
anticipate the isolated, wilful and furtive movements of a burglar-rapist
whose nefarious tendencies were apparently activated by the plaintiff's
failure to secure her premises with the security equipment provided by the
defendant.'" Id. at 652.  In Brewer a female patron of the motel was sexually
assaulted by a person entering her room through her open window. Id. at
650.  We concluded that "[t]he defendant had no warning whatsoever that
such an intrusion as did happen was likely to take place.  The danger was
not one which it was bound to have foreseen or to have guarded against." Id.
at 652.
	[¶10]  Our decision in Brewer, however, is distinguishable from the
facts of this case.  Brewer involved the relationship between a motel and a
patron injured as the result of an illegal entry through an unlocked window. 
This case involves the relationship between a university and a young student
injured by a companion that she admitted to the premises.   That a sexual
assault could occur in a dormitory room on a college campus is foreseeable
and that fact is evidenced in part by the security measures that the
University had implemented. See Mullins v. Pine Manor Coll., 449 N.E.2d
331 (Mass. 1983) (finding a duty owed to a female college student who was
attacked by an intruder on a campus in the Chestnut Hill section of
Brookline outside of Boston).  In Mullins, the Massachusetts Supreme
Judicial Court recognized that the concentration of young people, especially
young women, on a college campus, creates a favorable opportunity for
criminal behavior, that many of the students tend to be away from home for
the first time and may not be fully conscious of the dangers that are present,
and thus that the threat of criminal behavior is self-evident. Id. at 335 & n.7. 
It concluded that foreseeability was not dependent upon evidence of prior
criminal acts and that the precautions taken by the College to protect
students against criminal activities would make little sense unless criminal
activities were foreseeable.  Id. at 337.  We accept the observations made in
Mullins, and thus, we find the University owed a duty to reasonably warn and
advise students of steps they could take to improve their personal safety. 
	[¶11] Whether the University breached its duty is a question of fact.
Searles v. Trs. of St. Joseph's Coll., 1997 ME 128, ¶ 6, 695 A.2d 1206. The
University sets forth in its statement of material facts certain security
measures implemented.  Plaintiff in her statement in opposition asserts that
the University failed to warn her of any dangers or explain the security
measures implemented.  This assertion is sufficient to generate a genuine
issue of material fact as to the University's breach of its duty.  We need not
address the remaining elements, because the University did not challenge
them in its motion for summary judgment. See Corey v. Norman, Hanson &
DeTroy, 1999 ME 196, ¶ 9, 742 A.2d 933. Therefore, because a genuine
issue of material fact is present, the court erred in granting summary
judgment in favor of the University on the negligence claim.
IV. Implied Contract
	[¶12]  The parents argue that the court erred in granting summary
judgment in favor of the University on plaintiffs' implied contract claim. We
disagree. Whether a contract, express or implied, exists is a question of fact. 
June Roberts Agency, Inc. v. Venture Props., Inc., 676 A.2d 46, 48 (Me.
1996).  An implied contract "refers to that class of obligations which arises
from mutual agreement and intent to promise, when the agreement and
promise have simply not been expressed in words." 1 Samuel Williston &
Richard A. Lord, A Treatise on the Law of Contracts  1:5, at 20 (4th ed.
1990). The contract may be implied from conduct. Id. at 24.
	[13]  "'To establish a legally binding agreement the parties must
have mutually assented to be bound by all its material terms; the assent must
be manifested in the contract, either expressly or impliedly; and the
contract must be sufficiently definite to enable the court to determine its
exact meaning and fix exactly the legal liabilities of the parties.'" Searles v.
Trs. of St. Joseph's Coll., 1997 ME 128,  13, 695 A.2d 1206 (quotation
omitted).  "For a contract to be enforceable, 'the parties thereto must have a
distinct and common intention which is communicated by each party to the
other.'" Id. (quotation omitted).
	[14]  Plaintiffs' complaint alleges that the parents "entered into an
agreement with the University of Maine System wherein the University of
Maine System agreed, for consideration, to provide room and board for their
daughter Dolores Stanton, a minor, on the campus of the University of
Southern Maine in Gorham, Maine" and that pursuant to that agreement the
University expressly or impliedly was obligated to provide a safe and secure
environment and to take all reasonable steps for the protection and safety of
the minor student.  No facts exist in the statements of material facts that
generate a genuine issue whether an implied contract exists based on the
conduct of the parties.  The only material facts relating to a contract are:  As
a student athlete participating in a pre-season practice program, Dolores
was allowed to stay in a dormitory on campus and did so; and the University
used a document entitled "Resident Hall Application and Contract" for
students living in the University dorms during the school year and neither
the student nor her parents submitted the application in 1997.  Even if
these facts are sufficient to demonstrate an agreement to provide housing
for consideration, they fail to show with sufficient definiteness any terms
that plaintiffs allege were assented to by the parties.  Thus, we find no error
in the court granting summary judgment in favor of the University on the
parents' implied contract claim.
	The entry is:
Judgment vacated with respect to the negligence
claim.  Remanded for further proceedings consistent
with the opinion herein.  Judgment affirmed with
respect to the implied contract claim.
Attorneys for plaintiffs: David Kreisler, Esq., (orally) Mark L. Randall, Esq. Christian C. Foster, Esq. Daniel G. Lilley Law Offices, P.A. P O Box 4803 Portland, Me 04112-4803 Attoneys for defendant: Patricia A. Peard, Esq., (orally) Joan M. Fortin, Esq. Katherine D. Clark, Esq. Bernstein, Shur, Sawyer & Nelson, P.A. P O Box 9729 Portland, ME 04104-5029
FOOTNOTES******************************** {1} . The negligence claim was brought on behalf of the daughter. The remaining claims were brought on behalf of the parents. {2} . M.R. Civ. P. 7(d) was amended and moved to M.R. Civ. P. 56(h) effective January 1, 2001.