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College’s Duty of Care Does Not Extended to Off Campus Housing

February 28, 2019 • Posted By Joseph French • Complex Litigation


                           Fitzsimons, et al. v. Brennan and Marist College

                                         N.Y.L.J.  – February 22, 2019


            This is a wrongful death action.  Marist College had successfully moved for summary judgment, and plaintiffs’ estates appealed.


            Marist College provided its student with a list of off-campus private housing.  Decedents Kerry Fitzsimons and Eva Block, both Marist College student, along with another person, resided in a house owned by Kevin and Kristin Brennan.  A fire broke out in this house on January 21, 2012, and its residents perished in the fire.


            A wrongful death action was commenced against the Brennans and Marist College.  Summary judgment was awarded to Marist College, and that decision was appealed.  The Second Department agreed with the Lower Court that Marist College did not owe a duty of care to Ms. Fitzsimons and Ms. Block.


            ““The threshold question in any negligence action is: does defendant owe a legally recognized duty of care to plaintiff””?  (Hamilton v. Beretta U.S.A. Corp., 96 NY2d 222, 232).  In the context of this action, a critical consideration in determining whether such a duty exists is whether Marist College’s relationship with either the Brennans or Kerry and Eva placed the college in the best position to protect against the risk of harm (see Davis v. South Nassau Communities Hosp., 26 NY3d 563, 572).  Also relevant is the principle that “one who assumes to act, even through gratuitously, may thereby become subject to the duty of acting carefully” in (Moch Co. v. Rensselaer Water Co., 247 NY 160, 167 [internal quotation marks omitted]).


            The Court agreed that Marist College owed no duty to assure that the Brennan house complied with “relevant fire safety standards”.


            The Court further noted, ““Adult students who chose to live off campus, as well as the private landlords with whom they enter into a contractual relationship, are in the best position to ensure that off-campus apartments and houses have the required number of smoke detectors and other fire safety features.  While the risk of fire is all too foreseeable – often with tragic consequences, as this case demonstrates – “[f]orsee ability, alone, does not define duty – it merely determines the scope of the duty once it is determined to exist”” (Hamilton v. Beretta U.S.A. Corp., 96 NY2d at 232).


            Marist College never acted in any manner to “induce” the decedents to rent the house; nor did it do anything to place the decedents in “a more vulnerable position”.  The decedents rented the house because they had known students who had previously rented it.


            The decision is well reasoned, and gives additional backbone to similar duty of care decisions that delineated where an entity like Marist College might not owe a duty to adult students who willfully chose to live outside of campus residential housing.


Joseph French