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CARRINGTON et al v. DUKE UNIVERSITY et al Doc. 96 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA No. 1:08-cv-119 EDWARD CARRINGTON, et al., Plaintiffs, v. DUKE UNIVERSITY, et al., Defendants. ) ) ) ) ) ) ) ) PLAINTIFFS' OPPOSITION TO THE DUKE UNIVERSITY DEFENDANTS' MOTION TO DISMISS PURSUANT TO RULE 12(b)(6) Charles J. Cooper Brian S. Koukoutchos David H. Thompson Howard C. Nielson, Jr. Nicole Jo Moss (N.C. Bar # 31958) David Lehn COOPER & KIRK, PLLC 1523 New Hampshire Avenue, NW Washington, DC 20036 Tel. (202) 220-9600 William J. Thomas, II (N.C. Bar # 9004) THOMAS, FERGUSON & MULLINS, L.L.P. 119 East Main Street Durham, NC 27701 Tel. (919) 682-5648 Attorneys for Plaintiffs August 28, 2008 TABLE OF CONTENTS I. II. III. IV. V. Nature of Proceedings ..................................................................................... 1 Statement of Facts ........................................................................................... 1 Questions Presented......................................................................................... 5 Standard of Review ......................................................................................... 5 Argument......................................................................................................... 6 A. The Defendants Tortiously Inflicted Emotional Distress (Counts 6-7).......................................................................................... 6 1. 2. B. Intentional Infliction of Emotional Distress (Count 6) ............. 6 Negligent Infliction of Emotional Distress (Count 7)............... 10 The Defendants' Release of Key Card Data Was Tortious (Counts 8-10)........................................................................................ 10 1. 2. 3. Fraud (Count 8) ......................................................................... 11 Negligent Misrepresentation (Count 9)..................................... 15 Abuse of Process and Conspiracy to Abuse Process (Count 10) ................................................................................. 16 C. The Defendants' Advice to Plaintiffs Was Wrongful (Counts 11-13)...................................................................................... 18 1. 2. 3. Constructive Fraud (Count 11).................................................. 19 Voluntary Undertaking (Count 12) ........................................... 23 Special Relationship (Count 13) ............................................... 25 D. E. F. G. H. The Defendants' Failure to Protect Plaintiffs from Harassment Was Tortious (Count 14)...................................................................... 29 The Defendants Breached Their Contractual Duties (Counts 15-17)...................................................................................... 32 The Defendants Intruded upon Plaintiffs' Seclusion (Count 18)......... 45 Negligent Supervision (Count 19)........................................................ 47 Violation of and Conspiracy To Violate the Fourth Amendment Under Section 1983 Key Card Reports (Count 20) .......................... 47 1. 2. The Defendants Acted Under Color of State Law .................... 48 The Defendants Violated Plaintiffs' Rights Under the Fourth Amendment.............................................................. 50 VI. Conclusion....................................................................................................... 50 ii IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA No. 1:08-cv-119 ______________________________________ ) EDWARD CARRINGTON, et al., ) ) Plaintiffs, ) v. ) ) DUKE UNIVERSITY, et al., ) ) Defendants. ) ______________________________________ ) PLAINTIFFS' OPPOSITION TO THE DUKE UNIVERSITY DEFENDANTS' MOTION TO DISMISS PURSUANT TO RULE 12(b)(6) I. NATURE OF PROCEEDINGS We state the nature of the proceedings elsewhere. Plaintiffs Opposition to City of Durham's Motion to Dismiss ("Pls.' Durham Opp.") Part I.1 II. STATEMENT OF FACTS Among the defendants are Duke University and its administrators with direct involvement in furthering and prolonging the rape hoax. These Duke officials possessed from the outset convincing evidence of the players' innocence and had a responsibility to their students to speak out; but not only did they steadfastly remain silent, they also lent This brief addresses the motion to dismiss under Rule 12(b)(6) of Duke University, Richard Brodhead, John Burness, Robert Dean, Matthew Drummond, Victor Dzau, Aaron Graves, Kate Hendricks, Peter Lange, Larry Moneta, Tallman Trask, and Suzanne Wasiolek ("University Defendants"), which is joined by Duke University Health System ("DUHS"), Theresa Arico, and Tara Levicy ("SANE Defendants") (collectively for purposes of this brief, "Defendants" or "Duke Defendants"). 1 Duke's credibility to the rape allegations by repeatedly capitulating to the demands of an angry mob--a mob led by members of Duke's own faculty and student body--to condemn and punish the innocent players and their blameless coach. See, e.g., Carrington Complaint ("Compl.") 3.2 Throughout the crisis, Richard Brodhead (the President of the University) and other Duke officials consistently sacrificed the rights and interests of the accused Duke students in an effort to avoid embarrassment to Duke and to minimize criticism of its administration. Mangum's explosive allegations had created an angry mob led primarily by activist Duke faculty members, student protestors, and a hostile media, and the mob immediately rushed to condemn the lacrosse players, to intimidate and denounce the team's defenders, and to demand the team's swift and severe punishment. Brodhead repeatedly succumbed to the mob's demands, and he effectively condoned its actions. See, e.g., 10. Brodhead, who acknowledged after the players had been publicly exonerated that he was fully responsible for Duke's statements and actions throughout the rape hoax crisis, violated the players' rights and interests in three principal ways, see, e.g., 11: First, Brodhead and Duke failed to disclose, and actively suppressed, material exculpatory evidence in Duke's exclusive possession; discredited exculpatory evidence that had been publicly disclosed; and refused to review exculpatory evidence compiled by 2 The individual Duke University Defendants and Duke SANE Defendants acted both in their personal capacities and in their official capacities on behalf of their employers, Duke University and DUHS. See, e.g., Compl. 3. 2 the players' defense counsel. For example: When Nifong, the media, and others asserted as fact that Mangum had been raped and sodomized by three Duke lacrosse players, Brodhead and Duke did not disclose Duke police officer Christopher Day's contemporaneous incident report stating that Mangum's rape allegations had been so wildly inconsistent that they had been disregarded as incredible by the Durham police. And when Officer Day's report was publicly disclosed, Duke took steps to discredit it. When Nifong and his investigators repeatedly relied on nurse Levicy's statements that the medical and physical evidence collected by Duke Hospital corroborated Mangum's accusations, Brodhead and Duke failed to disclose that the records of Duke's forensic exam contained no such evidence. When Nifong publicly speculated that condom use might explain the negative DNA test results for all players, Brodhead and Duke failed to disclose that Mangum had thrice told doctors and nurses at Duke Hospital that her attackers had not used condoms. When Nifong repeatedly charged that the lacrosse players were hiding behind a conspiratorial "wall of silence," Brodhead and Duke failed to disclose that the team's co-captains, who had hosted the party at their off-campus residence, had voluntarily assisted police in searching the residence, had voluntarily submitted to an all-night interrogation, had voluntarily provided DNA samples and submitted to physical examinations, and had volunteered to take lie detector tests. Instead, Brodhead deliberately reinforced the "wall of silence" lie by repeatedly calling on the players to cooperate with police, knowing full well that they had done just that throughout the investigation. Brodhead and Duke remained silent and passively looked on while a politically ambitious and plainly unethical prosecutor, abetted by a mob led by activist Duke professors and student protestors, put 47 innocent Duke students through what Brodhead himself later admitted was "an ordeal the likes of which few have known." Second, Brodhead and the University looked on passively as activist members of the Duke faculty and student protestors waged an extraordinarily vitriolic public campaign of abuse and harassment against the innocent lacrosse players. This campaign 3 included public condemnations of the players as guilty of rape, racism, and a wall of silence; candlelight vigils and "pot-banging" protests on campus and at the players' residences; display of banners emblazoned with "castrate"; distribution throughout campus of WANTED-style posters displaying photos of the players and proclaiming their guilt; and in-class harassment of the players by openly hostile faculty members. Perhaps the most egregious of the attacks on the players was the infamous advertisement placed in the campus newspaper by the so-called "Group of 88" Duke professors. The ad made unmistakably clear that its faculty sponsors believed that the rape had occurred, and it thanked the student protestors "for not waiting" to "mak[e] your selves heard" and exhorted them "to turn up the volume." The ad was paid for with University funds and listed fifteen academic departments and programs as its sponsors. Brodhead took no steps to enforce Duke's applicable anti-harassment policy; nor did he criticize, let alone discipline, the activist professors and student protestors; nor did he even disassociate the University from their shameful actions and statements. Accordingly, he implicitly condoned these actions and statements and made Duke responsible for them. Third, Brodhead issued a series of carefully timed public statements and imposed a series of increasingly severe disciplinary measures on the team in an effort to satisfy the mob's demands for immediate and severe sanctions against the team and to distance Duke and its administrators from the intense public hostility that had been focused on the innocent lacrosse players. The intended and inevitable effect of Brodhead's statements and actions was to impute guilt to the players and to further inflame public opinion 4 against them. Brodhead's wrongful conduct on behalf of Duke was assisted by the wrongful conduct of several of his subordinates and other agents and representatives of Duke University, including the Duke University Police. See, e.g., Compl. 12, 342. The Duke Police: (1) suppressed and then tried to discredit exculpatory evidence; (2) without a subpoena or warrant, provided the Durham Investigators with confidential key card data and photos of the players for a rigged lineup; (3) helped the Durham Investigators gain entry to the players' residences to conduct warrantless searches; and (4) arranged for the players to give the Durham Investigators uncounseled interrogations and DNA samples. See Compl. 63-64, 139, 149, 162, 165, 176, 231, 306-08, 322-24, 327, 394-95, 414-20. In taking these actions, the University and its police were exercising their powers as state law-enforcement agencies and officials. See 62-64, 291. III. QUESTIONS PRESENTED 1. Whether Plaintiffs have stated claims for infliction of emotional distress (Counts 6-7). 2. Whether Plaintiffs have stated claims related to the disclosure of key card information (Counts 8-10, 20). 3. Whether Plaintiffs have stated claims for breach of duty (Counts 11-13, 19). 4. Whether Plaintiffs have stated claims based on contract and other promises (Counts 14-17). 5. Whether Plaintiffs have stated a claim for intrusion upon seclusion (Count 18). IV. STANDARD OF REVIEW We state the standard of review elsewhere. See Plaintiffs' Opposition to Defendant City of Durham's Motion to Dismiss ("Pls.' Durham Opp.") Part IV. 5 V. ARGUMENT The Duke University Defendants advance a number of challenges to Plaintiffs' claims. As explained below, none of Defendants' arguments has merit, except with respect to the promissory estoppel claim. Defendants have addressed the counts out of sequence; consistent with the Complaint and with the other Defendants' motions to dismiss, we here address the counts in sequence.3 A. The Defendants Tortiously Inflicted Emotional Distress (Counts 6-7) The Duke University Defendants present a variety of arguments against Counts 6 and 7, which relate to their infliction of emotional distress upon Plaintiffs. Building on our brief in response to the SANE Defendants' motion to dismiss, we further address why Defendants' arguments lack merit. 1. Intentional Infliction of Emotional Distress (Count 6) The Defendants contend that Count 6, which charges Defendants University, DUHS, Brodhead, Moneta, Lange, Burness, Trask, Wasiolek, Dzau, Hendricks, Drummond, and the Duke Police with intentionally inflicting emotional distress, fails to state a claim for several reasons. Brief in Support of the Duke University Defendants' Motion to Dismiss ("University Br.") 30-32. None of them has merit. We incorporate into this opposition all oppositions filed today by Plaintiffs against the motions to dismiss of the Duke University Defendants, the Duke SANE Defendants, Defendant City of Durham, the Durham Supervisor Defendants, Defendant Gottlieb, Defendant Himan, Defendant Wilson, Defendant Addison, and Defendant Covington. Cross references to specific sections of Plaintiffs' other oppositions are provided throughout this brief 6 3 First, they argue that they did not engage in "extreme and outrageous" conduct with respect to the false statements of Tara Levicy, a Duke nurse, to the Durham Investigators because her statements were not extreme and outrageous and because Defendants did not intend to ratify those statements. University Br. 31-32; see Compl. 521. The short answer is that "it is for the jury to determine ... whether the conduct complained of is, in fact, sufficiently extreme and outrageous to result in liability." Hogan v. Forsyth Country Club Co., 340 S.E.2d 116, 121 (N.C. 1986). Whether Levicy's misstatements were extreme and outrageous is relevant only insofar as Plaintiffs seek to hold Defendants vicariously liable for Levicy's false statements; that question is irrelevant insofar as Plaintiffs contend that Defendants' ratifications of those statements were themselves extreme and outrageous. We have elsewhere shown that Levicy's false statements were extreme and outrageous, that the University, Brodhead, DUHS, and Dzau ratified those statements, and that their ratifications were independently extreme and outrageous under the circumstances. See Plaintiffs' Opposition to the Duke SANE Defendants' Motion to Dismiss ("Pls.' SANE Opp.") Part V.B; see also Compl. 50-57, 61-64, 224, 234-35. Second, Defendants contend that the other conduct upon which Count 6 is based was not extreme and outrageous because " `insults' and `indignities' such as those alleged here are not enough." University Br. 32. Because "the factual basis of each [claim of IIED] is unique, each claim must be decided on its own merits." Guthrie v. Conroy, 567 S.E.2d 403, 409 (N.C. Ct. App. 2002) (quotations omitted) (alteration in 7 original). Contrary to Defendants' suggestion, their conduct went far beyond a little " `rough language' " that might get a rise out of someone. Id. (quoting Hogan, 340 S.E.2d at 123). Consider some of Defendants' outrageous acts: Through local and national media, Defendants repeatedly maligned Plaintiffs alternately as racially motivated gang-rapists or accomplices who had built a "wall of silence" to protect those rapists. Brodhead called the alleged criminal acts "brutal[]," "dehumaniz[ing]," and "crude[]." See Compl. 11, 216, 224-25, 231-32, 236-38, 246-48, 259-61, 279, 281, 289, 296-98, 306-08, 312, 356-58, 362, 365, 400, 430. Defendants repeatedly suppressed conclusively exculpatory evidence. In general, Defendants sat silently as investigators, Levicy, and Arico mischaracterized the evidence in Defendants' possession. Not only did they not disclose the Day Report, which documented that the Durham Police found Mangum not credible, they coerced Duke Police Officer Day to amend his report in order to undermine its force. Defendants delayed their production of medical records that showed that none of the three doctors and four nurses who examined Mangum at Duke Hospital found any medical or physical evidence of sexual assault. They did not disclose the facts that, as Nifong and the Durham Investigators had told them, the rape-kit test results were negative and Mangum had twice failed to identify her attackers in a photo lineup. Brodhead publicly tried to justify the silence of the Duke Police on the false ground that they lacked the authority to conduct an investigation. Defendants also refused to consider exculpatory evidence from the players. See 11, 106, 110-11, 138-47, 149, 225, 263, 277, 279, 290-91, 306-08, 322-23, 340, 378, 421, 423; Part V.B.3, H.1, infra. They watched passively as Duke professors, students, and others in the Duke community viciously harassed and violently threatened Plaintiffs harassment and threats that Defendants helped incite through their public misstatements and suppression of exculpatory evidence just noted while ignoring Plaintiffs' requests for protection from the harassment and threats. Among other things, protestors displayed "Wanted"-style posters and "castrate" signs, held "pot-banging" protests at the players' homes, and, in an ad sponsored by professors and academic departments and programs, the "Group of 88" urged students to "turn up the volume" on their attacks. See 11, 217, 225, 229-30, 240-45, 254, 256, 264, 266, 282-85, 314-15, 319-20, 356-58, 366-75, 444-55. Defendants punished Plaintiffs. They deprived them of important educational and athletic opportunities, such as by firing the coach and cancelling the season, and they subjected them to an investigation into their past disciplinary records. Defendants did 8 so even though they thought the punishment was "not fair" and was "not about the truth." See 3, 10-11, 225, 236-38, 289, 356-59, 361-65, 414-16, 418-20. As discussed elsewhere, Defendants violated and conspired with the Durham Investigators and others to violate Plaintiffs' common-law rights and federal statutory and constitutional rights. For example, the Duke Police arranged for Plaintiffs to submit to uncounseled interrogations by the Durham Investigators, helped the Durham Investigators search residences without a warrant, and turned over to the Durham Investigators key card data and photos of Plaintiffs to create a rigged lineup. See Part V.B.1, 3, H, infra; Pls.' SANE Opp. Part V.C-D. Any one of these actions alone would be extreme and outrageous. Together, they constitute a shocking, deeply offensive, and utterly indefensible attack on Plaintiffs that could not but cause Plaintiffs severe emotional distress. See Dixon v. Stuart, 354 S.E.2d 757, 759 (N.C. Ct. App. 1987) (allegation that "defendants ... `ridicul[ed]' and `harass[ed]' [plaintiff] in the workplace" sufficed to show extreme and outrageous conduct); Woodruff v. Miller, 307 S.E.2d 176, 176-78 (N.C. Ct. App. 1983) (extreme and outrageous to post on "Wanted" board in post office and to show to teachers and students copies of arrest warrant, indictment, and judgment arising out of current school superintendent's participation in prank break-in when he was in college); English v. Gen. Elec. Co., 683 F. Supp. 1006, 1017 (E.D.N.C. 1988) (extreme and outrageous to "remove[] [plaintiff] from [her job] under guard as if she were a criminal, ... assign[] her to a degrading `make work' job, ... deride[] her as paranoid, ... bar[] her from employment in controlled areas, ... subject[] her to constant surveillance in the workplace, isolate[] her from fellow workers ... and, ... conspire[] to fraudulently charge her with violations of safety and criminal statutes"), rev'd on other grounds, 496 U.S. 72, 77 (1990). Defendants' actions are even more extreme and outrageous in light of (1) the 9 fact that they either knew that the rape allegation was false, or were recklessly indifferent to the players' innocence, see Pls.' SANE Opp. Part V.A.1.a, e, B, and (2) the fact that they were bound to protect Plaintiffs from such harms because of, among other things, their control over Plaintiffs and Plaintiffs' dependence on them, see Part V.C-E, G, infra. See Guthrie, 567 S.E.2d at 409 ("unfair power relationship between defendant and plaintiff" is factor in whether conduct was extreme and outrageous). Finally, Defendants maintain that Plaintiffs have not alleged that they "suffered severe emotional distress as a result of the alleged conduct." University Br. 32. As explained elsewhere, this argument lacks merit. See Pls.' SANE Opp. Part V.A.1.d. 2. Negligent Infliction of Emotional Distress (Count 7) Count 7 seeks to hold the University, DUHS, Brodhead, Moneta, Lange, Wasiolek, Burness, Trask, Dzau, Hendricks, Drummond, and the Duke Police responsible for negligently inflicting emotional distress upon Plaintiffs. Compl. 527-30. Against this count, Defendants advance the same arguments they advance against Count 2. University Br. 33-34. We refer the Court to our rebuttal of those arguments in the context of Count 2. See Pls.' SANE Opp. Part V.A.1.d. B. The Defendants' Release of Key Card Data Was Tortious (Counts 810) In violation of the Family Educational Records & Privacy Act ("FERPA"), Duke turned over confidential key card reports to the Durham Investigators in the absence of a subpoena and without notifying Plaintiffs of any request for the reports, obtaining Plaintiffs' consent to disclose the reports, or informing Plaintiffs that Duke had disclosed 10 the reports See Compl. 324-27, 433; 20 U.S.C. 1232g(b)(1), (b)(2)(A), (d).4 Two months later, Nifong subpoenaed the key card records that Duke had already turned over. Compl. 434. Knowing that they had already disclosed the reports, Duke nonetheless responded to Nifong's subpoena in a manner intended to conceal from Plaintiffs their prior, illegal disclosure. See 433-43. 1. Fraud (Count 8) Count 8 seeks to hold Defendants Duke University, Hendricks, Drummond, the Duke Police, the Durham Investigators, and the City of Durham liable as principals and as co-conspirators for the fraud they perpetrated on Plaintiffs. 532-38. Defendants' arguments for dismissal of this count lack merit. First, Defendants argue that Plaintiffs have failed to identify each individual defendant's participation in the fraud as required by Rule 9(b). University Br. 35. In particular, Defendants claim that the Complaint does not sufficiently identify the defrauders because it alleges that, as Defendants emphasize, "[t]he above named defendants, and/or other senior Duke University . . . officials were aware that Duke had already disclosed this information to the Durham Investigators." University Br. 35 (quoting Compl. 534). But the Complaint is indisputably sufficiently particular with respect to the named defendants. Plaintiffs allege expressly that Defendants Hendricks, Drummond, the Duke Police, and the University falsely represented to Plaintiffs that the Key cards are used by Duke students to enter dormitories and other campus buildings, as well as at vending machines. Compl. 325. Key card data thus reveal the whereabouts and activities of students. 11 4 key card data had not already been disclosed to the Durham Investigators. See Compl. 57, 61-64, 324-28, 434-43, 532. Because the "other senior Duke University ... officials" are not named defendants, their participation in the fraud is relevant only insofar as the University is liable for their actions. Those officials' conduct is not critical to Plaintiffs' claim against the University because the University is already liable for this fraud by virtue of the acts of Hendricks, Drummond, and the Duke Police. See 57, 6164. In any event, the Complaint explicitly identifies one non-defendant senior official who participated in the fraud: Kermel Dawkins. 438, 531. Especially given that Plaintiffs have not yet "been afforded an opportunity to undertake discovery to investigate all of [their] concealment claims," the Complaint plainly satisfies Rule 9(b). Adams v. NVR Homes, Inc., 193 F.R.D. 243, 250-51, 253 (D. Md. 2000). Second, Defendants argue that the allegation that "Drummond and Hendricks `did not disclose' that the key card data had already been provided to the Durham Police ... is solely an allegation of omission, not an allegation of false representation or concealment." University Br. 35-36. According to Defendants, their omission would be fraudulent only if they had a duty to disclose, but, they say, they had no such duty. See University Br. 36 & n.18. Defendants have misread both the Complaint and the law in several ways. Foremost, it does not matter whether Defendants had a duty to disclose because the Complaint alleges that Defendants made affirmative misrepresentations, not just misleading omissions. In letters to Plaintiffs and their attorneys, Duke officials stated 12 that the University "intend[ed] to comply with ... the subpoenas," unless Plaintiffs objected. Compl. 435-36. For Defendants to say that they intended to produce what they had already produced was an affirmative misrepresentation. Similarly, for Defendants to say that, if Plaintiffs objected, they would refrain from producing what they had already produced, was an affirmative misrepresentation. See State v. Almond, 435 S.E.2d 91, 97 (N.C. Ct. App. 1993) ("we cannot see how the submission of invoices for goods not received would not amount to a misrepresentation"); Mapp v. Toyota World, Inc., 344 S.E.2d 297, 300 (N.C. Ct. App. 1986) ("the statement of an intention to perform an act, when no such intention exists, constitutes misrepresentation"). Moreover, Defendants' omission of the fact that they had already produced the reports was fraudulent. Defendants had a duty to disclose that fact by virtue of their fiduciary relationship with Plaintiffs, as discussed below. See Part V.C.1, infra. And even if Defendants were not in a fiduciary relationship with Plaintiffs, their omission was still fraudulent. A duty to disclose can arise under North Carolina law in several situations even if there is no fiduciary relationship, as Defendants' own authority recognizes. Specifically, there is such a duty if: (1) "defendants knowingly misled plaintiff by speaking without full disclosure"; (2) a "party acquires superior knowledge not readily available to the other and knows that the other is acting on the basis of the misinformation "; (3) "one party has taken affirmative steps to conceal material facts from the other"; or (4) a statute imposes a duty of disclosure. Breeden v. Rich. Comm. 13 Coll., 171 F.R.D. 189, 194-96 (M.D.N.C 1997); see Pls.' Durham Opp. Part V.C.1.5 Plaintiffs' allegations establish each of these situations: (1) Through the letters discussed above, Defendants spoke about the status of the reports without disclosing that they had already produced them. They knew that those letters would mislead Plaintiffs into thinking a motion to quash might stop production of the information indeed, some of the fraudulent communications were directed to Plaintiffs' counsel. Compl. 436. Defendants must have known that Plaintiffs had no way of knowing that they had already produced the reports particularly because Defendants had violated FERPA's notification duty and Defendant Hendricks, who sent one of the letters, was the University's Deputy General Counsel. Yet, Defendants not only sent the highly misleading letters, they also stood by silently as Plaintiffs acted on the basis of Defendants' disinformation campaign, by moving to quash the subpoena and participating in a court hearing on that motion. See 61, 327-28, 43744. Defendants' letters informing Plaintiffs of the subpoena and Defendants' subsequent silence in the face of Plaintiffs' motion to quash were affirmative steps by which Defendants intended to conceal their earlier, illegal production of the reports. 434. By requiring Defendants to notify Plaintiffs of their production and indeed to obtain their consent to the production, FERPA imposed upon (2) (3) (4) See also, e.g., Shaver v. N.C. Monroe Constr. Co., 306 S.E.2d 519, 525 (N.C. Ct. App. 1983) ("Defendants were under no duty to speak, but once the Company spoke, it was required to make a full and fair disclosure as to the matters discussed."); Wicker v. Worthy, 51 N.C. 500, 502 (1856) (defendant liable if "he says or does anything intended and calculated to create [a false] impression"); Harton v. Harton, 344 S.E.2d 117, 119 (N.C. Ct. App. 1986) (duty to disclose arises "when a party has taken affirmative steps to conceal material facts from the other"); Brooks v. Ervin Construction Co., 116 S.E.2d 454, 458 (N.C. 1960) (defendant "was under a duty to disclose" information "not apparent to plaintiffs and not within the reach of their diligent attention and observation"); Williams v. East Coast Sales, Inc., 298 S.E.2d 80, 82 (N.C. Ct. App. 1982) ("defendant's duty to speak, which rendered its silence actionable fraud, is a legal duty imposed by statute"). 14 5 Defendants a statutory duty to disclose the production. The University breached this statutory duty and then committed fraud to cover up its misconduct. In sum, no matter how one looks at it, Defendants' conduct was fraudulent.6 2. Negligent Misrepresentation (Count 9) In Count 9, Plaintiffs claim that, through their actions described above in connection with Count 8, Defendants Duke University, Hendricks, and Drummond are liable for negligent misrepresentation. 540-41. Defendants contend that their misrepresentations "did not arise in the course of a business transaction," and therefore the tort of negligent misrepresentation does not apply. University Br. 36-37. In truth, the circumstances here fit the tort quite well. Plaintiffs' dealings with Duke were founded on a very traditional business transaction: Plaintiffs paid tuition and fees in exchange for the education and other services furnished by the University. Defendants' misrepresentations did not occur on the athletic field. Cf. Mercer v. Duke Univ., No. 97-959 (M.D.N.C. Sept. 28, 2000), slip op. 23-28 (statements about whether plaintiff was qualified to play on football team were not made in course of business transaction) (attached to University Br. as Exh. 2). The misrepresentations were made by the University in the course of informing its students of their legal right to call upon counsel for the purpose of quashing a subpoena seeking their protected records. Indeed, Contrary to Defendants' assertion that "Plaintiffs have failed to allege ... what the defendants gained by withholding the information," University Br. 36 & n.18, the Complaint clearly alleges what Defendants stood to gain: they tried to use their fraud "to paper over the fact of [their] prior illegal disclosure" of the key card data and thus avoid the penalties for violating FERPA. Compl. 434. 15 6 some of the false representations were made directly to Plaintiffs' legal counsel. Compl. 436. See RESTATEMENT (SECOND) OF TORTS 552 cmt. d (identifying "pecuniary interest" in a particular transaction as element of the tort, and making clear that such interest may "be of a more indirect character" than direct consideration furnished by plaintiff for the representation); Mercer, No. 97-959, Slip op. at 24-26 (North Carolina has adopted 552). That, of course, is what Defendants were required by law to do (but did not do) before they gave the records to the Durham police the first time. 3. Abuse of Process and Conspiracy to Abuse Process (Count 10) Defendants contend that Count 10, which seeks to hold the University, Hendricks, Drummond, the Duke Police, the Durham Investigators, and the City of Durham liable for abusing and conspiring to abuse legal process by issuing a sham subpoena for Plaintiffs' key card reports, Compl. 543-48, fails for two reasons. First, they argue that they cannot be liable for Nifong's decision to issue the subpoena because they did not collaborate or conspire with him to do so. University Br. 38. This quintessentially factual defense will be for the jury to decide; at this stage, the allegations more than suffice. Dickens v. Puryear, 276 S.E.2d 325, 337 (N.C. 1981). By the time of the subpoena, the Duke Defendants knew that the Duke Police had already turned over the key card report prepared by Drummond's Card Office and knew or should have known that they had violated FERPA by doing so. See Compl. 57, 61-64, 324-28, 434, 436, 438, 441. Armed with that report, the Durham Investigators presented a third rigged photo identification array to Mangum. See 324-26. And yet, through 16 letters that Drummond and Hendricks, the University's Deputy General Counsel, sent to all the players and through the silence of the University's lawyers at the state-court hearing on the players' motion to quash the subpoena, the Duke Defendants performed an elaborate charade, acting as if they had not already turned over the key card information. See 435-37, 439-43; Part B.1, supra. More generally, the Duke Police and the University (through its police department and other officials) coordinated their actions during the rape investigation in bad faith and to the detriment of Plaintiffs. Exercising its law enforcement authority, the Duke Police Department met with and spoke with the Durham Investigators several times during the investigation in order to bolster the case against the players in the face of the disintegrating incriminating evidence and the mounting exculpatory evidence. See 306-08, 342. Through the Day Report and conversations with the Durham Investigators, the Duke Police and other University officials were well aware that Mangum's accusations were not credible and that there was no evidence incriminating the lacrosse players in the alleged rape, see 111, 139, 415; rather than disclose the Day Report to explode the investigation, however, the Duke Police and other University officials, at Nifong's request and with the agreement of the Durham Investigators and Supervisors, suppressed that report and even actively worked to discredit it, see 11, 231, 276-77, 322-23, 414-20, 423. That was not the only exculpatory evidence the Duke Police suppressed; they never revealed that, as the Durham Investigators had told them at the end of March, the rape-kit lab results were negative and Mangum had twice failed to 17 identify any attackers. See, e.g., 306-08. The Duke Police supplied the Durham Investigators with photos of the players to conduct rigged photo lineups. See 149, 157-58, 165, 193-95, 343-51. The Duke Police and other Duke officials worked with the Durham Investigators to arrange for the players to submit to uncounseled police interrogations and to provide DNA. See 176-78, 196-98. And Duke officials helped the Durham Investigators conduct warrantless searches of student residences, including 610 North Buchanan, in connection with the rape investigation. 152, 394-95. In light of these allegations, the conclusion is reasonable and plausible that the Duke Defendants agreed with Nifong and the Durham Investigators to issue the sham subpoena in the hope that doing so would conceal their prior unlawful disclosure of the key card information; if there had been no conspiracy to conceal the earlier, illegal disclosure, Nifong and the Durham Investigators would not have subpoenaed the key card information, and the Duke Defendants would have responded to any such subpoena by pointing out that they had already given Nifong and the Durham Investigators the requested information. See 543-45; see also Part V.B.1-2, supra; Pls.' Durham Opp. Parts IV, V.A, C.1-2. Second, Defendants argue that Plaintiffs have not "adequately alleged [the] elements" of the claim of abuse of process. University Br. 39-40. We rebut this argument elsewhere. See Pls.' Durham Opp. Part V.C.2. C. The Defendants' Advice to Plaintiffs Was Wrongful (Counts 11-13) Counts 11-13 arise out of Defendants' self-serving and detrimental advice to 18 Plaintiffs regarding how to respond to Mangum's allegation of rape and the consequent criminal investigation. Defendants contend that these counts fail because they "did not have, and did not assume, a legal duty of care to Plaintiffs." University Br. 18. Addressing each count in turn, we show that Defendants' arguments are incorrect. We note that Defendants do not dispute that, if they were subject to these duties, they breached these duties or that their breaches caused Plaintiffs injury. 1. Constructive Fraud (Count 11) In Count 11, Plaintiffs claim that the University, Brodhead, Trask, Wasiolek, and Covington abused and exploited their confidential relationships with Plaintiffs in order to serve and protect their own interests. Compl. 550-57. An action for constructive fraud "arises where a confidential or fiduciary relationship exists, which has led up to and surrounded the consummation of the transaction in which defendant is alleged to have taken advantage of his position of trust to the hurt of plaintiff." Forbis v. Neal, 649 S.E.2d 382, 388 (N.C. 2007) (quotations omitted). Defendants deny that they were in a fiduciary relationship with Plaintiffs, but their argument lacks merit. University Br. 19. Defendants assert that courts "have uniformly rejected the proposition that a fiduciary relationship exists between universities (or their administrators) and the students enrolled there." University Br. 19. Not only is that assertion incorrect, but it is in fact belied by the very decision Defendants cite to support it: in Davidson v. University of North Carolina, the court remarked that "the student-university relationship, standing alone, does not constitute a special relationship giving rise to a duty of care," but "the 19 factual circumstances and policy considerations in [that] case warrant[ed]" imposing upon the university a duty of care toward its junior-varsity cheerleading squad. 543 S.E.2d 920, 927-28 (N.C. Ct. App. 2001) (emphasis added)7; cf. Madey v. Duke Univ., No. 97-1170, 1999 U.S. Dist. LEXIS 21379, at 25, 28-31 (M.D.N.C. Dec. 1, 1999) (Beaty, J.) (rejecting Duke's argument that fiduciary relationship can never exist between university and professor), aff'd in part and rev'd in part on other grounds, 307 F.3d 1351 (Fed. Cir. 2002). Rather, "a fiduciary relationship may exist under a variety of circumstances, and exists in all cases where there has been a special confidence reposed in one who in equity and good conscience is bound to act in good faith and with due regard to the interests of the one reposing confidence." Madey, 1999 U.S. Dist. LEXIS 21379, at 25, 28-31 (Beaty, J.) (citation and quotations omitted). Put another way, a fiduciary relationship exists if "there is confidence reposed on one side, and resulting domination and influence on the other." Strickland v. Lawrence, 627 S.E.2d 301, 305 (N.C. Ct. App. 2006) (quotations and emphasis omitted). Accordingly, "the existence of a fiduciary relationship is determined by specific facts and circumstances, and is thus a question of fact for the jury." Id. (quotations omitted). Citing the unpublished decision in Ryan v. University of North Carolina Hospitals, No. COA04-16, 2005 N.C. App. LEXIS 402 (N.C. Ct. App. Mar. 1, 2005), and the South Carolina Supreme Court's decision in Hendricks v. Clemson University, 578 S.E.2d 711 7 To be precise, Davidson involved a duty based on a "special relationship" rather than a "fiduciary relationship." We therefore discuss Davidson further in the context of Count 13. See Part V.C.3, infra. 20 (S.C. 2003), Defendants argue that two reasons weigh against finding a fiduciary relationship between a university and a student: (1) "university educators and administrators cannot" owe students "undivided loyalty ... because they always remain charged with carrying out the `rules and regulations' of the university"; and (2) "fiduciary relationships have traditionally been confined to the legal and business contexts." University Br. 20. In this case, however, these very considerations, along with others, demonstrate that there was a confidential relationship between Defendants and Plaintiffs. First, Defendants voluntarily assumed a special role of trust. Defendants deliberately and affirmatively attempted to and for a time did displace the people who would ordinarily have advised the players in this situation pursuant to a confidential relationship namely, the players' parents and lawyers. Defendant Wasiolek, Duke's Assistant Vice President for Student Affairs and Dean of Students, advised Plaintiffs not to hire a lawyer and not to tell their parents about the allegations. Compl. 143, 147. She and other Duke officials then referred the players to Defendant Covington, a lawyer who had Defendants' interests, not Plaintiffs', at heart. 169-71, 175-76, 200-01. Second, Defendants were "superior part[ies]" who possessed and asserted day-to-day authority over the players, both individually and collectively as a varsity athletic team: Dean of Students Wasiolek was a lawyer and a revered and trusted advisor to students, 138, 144; in contrast, Plaintiffs were young college students facing very serious, sensational charges. See Forbis, 649 S.E.2d at 384, 388-89 (where elderly aunts designated their nephew their "attorney-in-fact," nephew owed aunts fiduciary duty). 21 Defendants enhanced their superior position relative to the players by acting through Coach Pressler and Athletic Director Kennedy, whose son had been a captain of the 2005 lacrosse team. Compl. 141, 147, 168-69, 179, 200. Third, the advice given by Defendants to Plaintiffs was legal in character, not academic or athletic. Defendants advised Plaintiffs not to hire a lawyer to represent them in an ongoing criminal investigation (violating Wasiolek's duties under North Carolina Rule of Professional Conduct 4.3). They instructed Plaintiffs to cooperate with the police and then directed Plaintiffs to meet with a particular lawyer, Covington, who, purporting to act as "the unofficial legal advisor to everyone," discouraged Plaintiffs from hiring a lawyer and then arranged for and encouraged Plaintiffs to give uncounseled interviews and DNA to the Durham Investigators. See 143, 146, 173, 175-77, 179, 196-97, 20001, 203. Fourth, Defendants exploited their superior position in order to solicit and obtain confidential information from Plaintiffs. For example, invoking the fictitious "student-administrator privilege," Executive Vice President Trask demanded that the cocaptains tell him the details of the party. See 141-42, 171, 225-28, 286-88. Fifth, Defendants were not carrying out or enforcing University rules in advising Plaintiffs, nor were their self-serving actions compelled by any University rule or regulation. In sum, Plaintiffs reposed their trust and confidence in Defendants, and Defendants in return dominated and influenced Plaintiffs. Under these circumstances, therefore, Defendants had a confidential and fiduciary relationship with Plaintiffs. In contrast, Ryan and Hendricks, as well as the other decisions cited by Defendants, see 22 University Br. 21 n.12, involved everyday consultations with school officials about academic performance and requirements.8 2. Voluntary Undertaking (Count 12) Defendants advance a number of objections to Count 12, which would hold the University, Brodhead, Trask, Wasiolek, and Covington liable for breaching their duty to conduct a voluntary undertaking with care. Compl. 559-64. First, Defendants attempt to paint their actions as a typical instance of "providing advice to students about difficulties they face in their personal lives" or "educational malpractice," as if Plaintiffs were dissatisfied with guidance they received about which courses to take. University Br. 21-23 & n.14 (citing, among other decisions, Hendricks, 578 S.E.2d at 711, 715 (advising about academic credits for athletic eligibility); Peter W. v. San Francisco Unified Sch. Dist., 131 Cal. Rptr. 854, 857-61 (Cal. Ct. App. 1978) (teaching of reading and writing)). From this premise, Defendants argue that there is no "readily acceptable standard[] of care" and that imposing a duty of care would expose schools to unlimited liability and thus discourage them from providing needed services. See Ryan, 2005 N.C. App. LEXIS 402, at 8-12 (doctors who served as medical resident's "teachers" and faculty "advisors" did not have fiduciary relationship with resident); Hendricks, 578 S.E.2d at 713, 715-16 (student's consultation with "athletic academic advisor" about credits necessary to be eligible to play baseball did not create fiduciary relationship); Shapiro v. Butterfield, 921 S.W.2d 649, 651 (Mo. Ct. App. 1996) ("bare allegations" insufficient to show "faculty advisor" had fiduciary relationship with graduate student); Morris v. Brandeis Univ., No. CA 00-2161, 2001 Mass. Super. LEXIS 518, at 18-19 (Mass. Sup. Ct. Sept. 4, 2001) (plaintiff's mere "status as a student" insufficient to create fiduciary relationship with college). 23 8 University Br. 22-24. But, as explained above, this is not an accurate description of Defendants' conduct. Rather, Defendants deliberately displaced those who would be the players' most trusted advisors their parents and lawyers and then guided the players about matters that were legal in nature. See Part V.C.1, supra. Accordingly, there are readily acceptable standards of care here, including North Carolina Rule of Professional Conduct 4.3. See Compl. 146. And the scope of Defendants' potential liability was entirely within their control. Defendants worry specifically about "tort suits based on advice that turns out to be mistaken." University Br. 22, 24. But here, Defendants intentionally or recklessly gave advice at war with the players' interest because they intended to protect Duke, even at the expense of Plaintiffs. See Part V.C.1, supra. Having assumed the role of confidential counselor, including legal advisor, Dean Wasiolek and the other Defendants were bound by a duty of care. Second, Defendants claim that the duty to perform a voluntary undertaking with care applies only if the resulting harm is physical. University Br. 23-24. As shown below, that is not North Carolina law; the better view is that Defendants are liable at least for the type of harm from which they undertook to protect Plaintiffs. See Part V.D, infra. Defendants undertook to protect Plaintiffs from the ordeal of a criminal investigation for rape and the predictable consequences of that investigation: reputational harm, severe emotional distress, economic loss, and deprivation of educational, athletic, and professional opportunities. See Compl. 141-47, 168-79, 196-204, 225-28, 562. They are, therefore, liable for those harms, which resulted from their failure to provide 24 reasonable protection against such harms. See, e.g., 562. In any event, Plaintiffs suffered harms that were physical or that were tied to a physical harm: they were subjected to threats of violence, had to flee their homes, and lost their opportunity in 2006 to play for a national lacrosse championship. See 217, 284-85, 316-21, 357, 475, 562. Third, Defendants contend that they had no duty because they did not "play[] any part" in the party at which the bogus rape allegedly occurred. University Br. 24. That is irrelevant because the duty at issue does not relate to the school's oversight of the party (Plaintiffs do not contend, e.g., that they were injured during the party). Rather, the duty at issue relates to Defendants' voluntary advice about how Plaintiffs should respond to the rape allegations. 3. Special Relationship (Count 13) In Count 13, Plaintiffs claim that the University and Brodhead breached their duty to protect Plaintiffs from the harms they suffered, which Defendants owed because of the special relationship of mutual benefit and control between them and Plaintiffs. Compl. 566-73. Defendants contend incorrectly that "the alleged omissions fall outside the scope of any special relationship that might have existed." University Br. 25. First, Defendants stress that " `the student-university relationship, standing alone, does not constitute a special relationship giving rise to a duty of care.' " University Br. 26 (quoting Davidson, 543 S.E.2d at 928). This point is irrelevant because, as Defendants then recognize, Plaintiffs contend that the special relationship is specific to 25 their status as players on the University's varsity lacrosse team. See Compl. 566-68; University Br. 26-27. Second, relying on the Second Restatement and Davidson, Defendants maintain that, if they owed a duty because of a special relationship, then it extended only to protecting Plaintiffs from injuries suffered during "an official, school-sponsored activity over which the school exercised considerable control." University Br. 27. As Defendants see it, they are liable only for injuries Plaintiffs suffer "in the course of playing lacrosse." Defendants further posit that the relevant activity for purposes of Count 13 was the party at which the rape allegedly occurred. University Br. 27. As we explained in the context of Count 12, however, the status of the party is irrelevant because Plaintiffs do not claim that they were injured at the party. See Part V.C.2, supra. More fundamentally, neither the Second Restatement nor Davidson restricts Defendants' special relationship with, and therefore duty to, the players to the lacrosse field. The cited comment from the Restatement does limit the duty to risks of harm that "arise[] in the course of [the special] relation," RESTATEMENT (SECOND) TORTS 314A cmt. c, but Defendants have too narrow of a view of what that standard means. That comment explains, for example, that the duty of a common carrier ends when the person "has left the vehicle and ceased to be a passenger" and that the duty of a possessor of land ends when the person "has ceased to be an invitee." Id. Analogously, Plaintiffs' injuries would have been outside Defendants' duty if Plaintiffs had ceased to be Duke lacrosse players or if Plaintiffs were injured while engaged in an activity unrelated to their status 26 as lacrosse players. But Plaintiffs were injured while they were Duke lacrosse players and specifically because they were Duke lacrosse players: they were vilified as criminals, harassed, and threatened because they were members of the Duke lacrosse team, see Compl. 138, 141-43, 149, 155-59, 165, 168-69, 176-79, 189, 193-94, 204-06, 210, 212-13, 216-17, 230-34, 242-66, 271-73, 278, 280-85, 299-03, 308, 314-21, 324-26, 34346, 366-75, 383-84, 399, 405-07, 430-32, 473-75, 478; and the University punished them as lacrosse players by launching an investigation into the entire team's past behavior, by firing the team's coach, and by suspending and then cancelling the team's season, see 141-43, 224-26, 229, 235-38, 289, 355-56, 360, 362-63, 408, 476-77. That Plaintiffs' injuries were not suffered "in the course of playing lacrosse," University Br. 27, does not place them outside their special relationship with Defendants. Some of the harms Plaintiffs suffered involved their on-field activities, namely, the suspension and then cancellation of the season. And the other harms Plaintiffs suffered arose in the course of their special relationship with Defendants. The court in Davidson did, as Defendants note, "emphasize that [its] holding is based on the fact that plaintiff was injured while practicing as part of a school-sponsored, intercollegiate team." 543 S.E.2d at 928. The context of that remark, however, makes clear that the court did not mean to require that the injury occur during a school-sponsored team event; rather, the court meant only to explain that "the student-university relationship, standing alone, does not constitute a special relationship giving rise to a duty of care." Id. Like the plaintiff in Davidson, the special relationship between Plaintiffs and 27 Defendants here was built on Defendants' control of the lacrosse team's conduct off the field, including its control of the team's academic performance and public behavior and image, in order to garner prestige and economic advantage for the University indeed, the University treated the team as ambassadors and representatives of the University to other students, the local community, the nation, and the world at large. See, e.g., Compl. 83-89; Davidson, 543 S.E.2d at 923, 927 (special relationship where school imposed special academic requirements on cheerleaders, used them as representatives at trade show as well as athletic events, and regulated their public conduct). By exerting control and authority over the players' conduct both on and off the field, and in particular over the team's public image, Defendants had a duty to attempt to protect Plaintiffs from public vitriol, harassments, threats, and similar harms. See id. at 927 ("Fairness in such cases thus may require the defendant to use his power to help the plaintiff, based upon the plaintiff's expectation of protection, which itself may be based upon the defendant's expectation of financial gain."); LOGAN & LOGAN, NORTH CAROLINA TORTS 2.20, at 28 (2d ed. 2004) (In a special relationship, "the plaintiff is typically in some respect particularly vulnerable and dependent upon the defendant who, correspondingly, holds considerable power over the plaintiff's welfare. In addition, such relations have often involved some existing or potential economic advantage to the defendant."). Finally, Defendants posit that holding them liable would "discourage students from taking responsibility for their actions." University Br. 28. But the threats, harassment, reputational harm, emotional distress, economic loss, and loss of educational 28 and athletic opportunities suffered by Plaintiffs were not the natural, foreseeable, and justified "repercussions" of Plaintiffs' decision to attend the party or anything they did at that party. See University Br. 27. Rather, they were the natural and foreseeable repercussions specifically of the wrongful acts of the Duke and Durham Defendants, as alleged in detail in the Complaint. Justifying these harms as a kind of punishment for the players' party, as Defendants suggest, would not teach them to take responsibility for their actions; it would teach them that they have been victimized by the laws and the court no less than by Mangum, Nifong, Levicy, Gottlieb, and the other Defendants. D. The Defendants' Failure to Protect Plaintiffs from Harassment Was Tortious (Count 14) In Count 14, Plaintiffs claim that Defendants breached their duty to protect Plaintiffs from harassment. Compl. 575-81. None of Defendants' objections has merit. First, Defendants argue that, because the University's "bulletins and handbooks are not binding contracts," the bulletins and handbooks cannot be the basis of a duty of care. University Br. 16-17. We refute this argument at length below. See Part V.E, infra. Moreover, Rucker v. First Union National Bank, 389 S.E.2d 622, 624-25 (N.C. Ct. App. 1990), upon which Defendants rely, is inapposite because it involved an employee manual: as explained below, the rule that employee handbooks are not contractually binding would be undermined if a claim of negligence could be based on an employee handbook; because student bulletins, handbooks, and other university publications may bind the school contractually, however, resting a duty of care upon such publications does not raise a similar problem. See Part V.E, infra. 29 Second, Defendants maintain that Count 14 fails because "the `voluntary undertaking' doctrine is available only to a plaintiff who has suffered physical injury or, perhaps, injury to property." University Br. 17. As shown above, however, Defendants' breach of their duty caused Plaintiffs harms that were physical or that were tied to a physical harm. See Part V.C.2, supra. (Defendants do not dispute that their conduct breached their duty if they had one, or that their breach injured Plaintiffs.) In any event, Defendants have not described North Carolina law accurately. The two North Carolina decisions cited by Defendants spoke in terms of physical harm to person or property because that was all that was at issue, and the treatise cited by Defendants merely quotes the Second Restatement, which, as discussed presently, does not establish Defendants' position. See University Br. 17 n.9; Firemen's Mut. Ins. Co. v. High Point Sprinkler Co., 146 S.E.2d 53, 60-62 (N.C. 1966) (pipe burst, damaging building); Pinnix v. Toomey, 87 S.E.2d 893, 897-901 (N.C. 1955) (damage to building from construction activity); NORTH CAROLINA TORTS 2.20, at 30 n.19. The North Carolina courts have in fact not resolved this issue, but the better rule is that the liability of a defendant who voluntarily undertook to protect a plaintiff from a particular type of harm should encompass at least the resulting harm of that type. If a defendant does not want to be liable for that type of harm, he can decline the undertaking.9 Cf. Johnson v. Both versions of the Restatement of Torts cited by Defendants are consistent with the rule that liability may be limited to physical harm only if the harm against which the defendant sought to protect the plaintiff was solely physical. See University Br. 17; RESTATEMENT (SECOND) OF TORTS 323 ("One who undertakes ... to render services to 30 9 Ruark Obstetrics & Gynecology Assocs., P.A., 395 S.E.2d 85, 97 (N.C. 1990) ("Where ... a plaintiff ... has suffered severe emotional distress as a proximate result of the defendant's negligence, the plaintiff need not allege or prove any physical impact, physical injury, or physical manifestation of emotional distress in order to recover on a claim for negligent infliction of emotional distress."). Here, Defendants, by adopting, promulgating, and enforcing anti-harassment policies, voluntarily undertook to protect Plaintiffs from harassment by Duke professors, students, and employees. See, e.g., Compl. 575; Part V.E., infra. Defendants are therefore liable for their failure to protect Plaintiffs from that type of harm. Moreover, the limitation of liability to physical harm would not apply here because Defendants' undertaking to protect Plaintiffs from harassment was reinforced by the University's contractual duties to protect Plaintiffs from harassment, as discussed below. See Compl. 576; Chew v. Paul D. Meyer M.D., P.A., 527 A.2d 828, 831-33 (Md. Ct. Spec. App. 1987) ("[E]ven if the doctor's initial contractual duty to provide another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking ...."); RESTATEMENT (THIRD) OF TORTS 42 & cmt. a (Proposed Final Draft No. 1) (2005) ("An actor who undertakes to render services to another that the actor knows or should know reduce the risk of physical harm to the other has a duty of reasonable care to the other in conducting the undertaking ..." and accordingly the actor's liability for the breach is "limited ... to physical harm"). As the Third Restatement's subtitle "Liability for Physical Harm" indicates, the entire Third Restatement "is limited to liability for physical harm"; the conditions under which one may be liable for nonphysical harm are "left to the Restatement Second of Torts ... , the developing case law, and future Third Restatement efforts." Id. 4 cmt. d (Proposed Final Draft No. 1). 31 medical and surgical treatment did not include the obligation to complete and submit the insurance form, it established a sufficiently `intimate nexus' to support a tort claim if Dr. Meyer gratuitously undertook that obligation and then performed it in such a negligent manner that economic loss to [the plaintiff] resulted."); Part V.E, infra. E. The Defendants Breached Their Contractual Duties (Counts 15-17) Counts 15-17 alleged that Defendants' breached various contractual duties owed to Plaintiffs. Defendants primarily dispute that they were subject to any contractual duties. We concede that Count 17 fails as a matter of law for the reason identified by Defendants. See University Br. 15; Home Elec. Co. of Lenoir, Inc. v. Hall and Underdown Heating and Air Conditioning Co., 358 S.E.2d 539, 542-45 (N.C. Ct. App. 1987), aff'd without opinion, 366 S.E.2d 441 (N.C. 1988). But Defendants' objections to Counts 15 and 16 are without merit. Count 15 seeks to hold the University liable for breaching several contractual promises it made to Plaintiffs: the University failed to implement and enforce its antiharassment commitment as set forth in its 2005-06 Undergraduate Bulletin, the Faculty Handbook, and other documents, by making no effort to stop, and at times even fostering, the protests, condemnation, and vilification that Duke students, faculty, and staff directed toward Plaintiffs; the University failed to afford Plaintiffs various procedural rights as set forth in the Bulletin, by condemning, punishing, and otherwise treating Plaintiffs, both publicly and privately, as guilty of the alleged gang rape or the alleged conspiracy to cover it up, despite the overwhelming exculpatory evidence in the University's 32 possession or reasonably available to the University; and the University cancelled the lacrosse team's season and fired its coach in bad faith and for illegitimate reasons. Compl. 583-96. Defendants contend that this claim fails because Plaintiffs have not alleged "the mutual manifestation of an intent to be bound," that is, an agreement. University Br. 10. Defendants are wrong. There is a national consensus that "the basic legal relation between a student and a private university or college is contractual in nature. The catalogues, bulletins, circulars, and regulations of the institution made available to the matriculant become a part of the contract," as does a duty to act in good faith. Ross v. Creighton Univ., 957 F.2d 410, 416 (7th Cir. 1992) (quotation marks omitted); see, e.g., Mangla v. Brown Univ., 135 F.3d 80, 83 (1st Cir. 1998); Alsides v. Brown Inst., Ltd., 592 N.W.2d 468, 472-74 (Minn. Ct. App. 1999); Bleicher v. University of Cincinnati College of Med., 604 N.E.2d 783, 787-88 (Ohio Ct. App. 1992); Gally v. Columbia Univ., 22 F. Supp. 2d 199, 206-07 (S.D.N.Y. 1998); see also Gallimore v. Daniels Constr. Co., 338 S.E.2d 317, 319 (N.C. Ct. App. 1986) ("Every contract or agreement implies good faith and fair dealing between the parties to it ....").10 In North Carolina, as in most other jurisdictions, courts disfavor claims that require "inquiry into the nuances of educational processes and theories" or into whether the education provided "was not good enough," but courts in North Carolina Contrary to Defendants' suggestion, the Fourth Circuit did not hold in Tibbetts v. Yale Corp. that "student bulletins are not contracts," University Br. 11 n.4; rather, applying Virginia law, it held only that, under the circumstances, a particular section of the student handbook was not binding. 47 Fed. Appx. 648, 656 (4th Cir. 2002). 33 10 will make "an objective assessment of whether the institution made a good faith effort to perform on its promise" if that promise is "specific." Ryan v. University of N.C. Hosps., 494 S.E.2d 789, 791 (N.C. Ct. App. 1998) (quotation marks omitted); see also Alsides, 592 N.W.2d at 472-74; Ross, 957 F.2d at 416-17; Gally, 22 F. Supp. 2d at 207. More generally, "[t]he proper standard for interpreting the contractual terms is that of reasonable expectation what meaning the party making the manifestation, the university, should reasonably expect the other party to give it." Mangla, 135 F.3d at 83 (quotation marks omitted). Whether a school made a specific and therefore enforceable promise is a question of fact. See Ryan, 494 S.E.2d at 791; Ross, 957 F.2d at 417; Mangla, 135 F.3d at 83-84. Under these principles, the University was contractually bound to provide an environment for Plaintiffs in which harassment by fellow students, faculty, and staff was not tolerated; to afford Plaintiffs various procedural rights in disciplinary matters; and to provide Plaintiffs with the opportunity to play lacrosse for Coach Pressler (or at least not to deny that opportunity in bad faith and for illegitimate reasons). Plaintiffs do not clai

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