The Need for a Safe Campus

Below is an article featured in the San Francisco Chronicle today about an interesting case my office is involved in.  This case addresses issues of safety on campus, specifically Title VI and Title IX of the Civil Rights Act of 1964:

The University of California is asking a judge to toss a federal lawsuit by parents who say UC is responsible for the death of their daughter and her young son, who were in a car driven by the daughter’s drunken boyfriend last year when he slammed it into a tree.

The suit, Lopez vs. UC Regents, is not focused on details of the crash of May 18, 2012, which happened six days after Milanca Lopez, 22, graduated from UC Berkeley with a bachelor’s degree in social welfare. The driver, Jose Lumbreras, is serving six years in prison for vehicular manslaughter while intoxicated.

Instead, the suit says UC failed to take legally required steps to investigate and protect Lopez after she reported to her housing director that Lumbreras was abusing her and her son, Xavier Chevez, 6. The three lived in Lopez’s apartment in University Village.

UC says the Lopez family hasn’t proved that the regents or Cephas John, a housing coordinator at UC Berkeley, knew about an abusive situation or, if they did, that they could have prevented the tragedy. Judge Edward Chen is scheduled to hear the dismissal arguments at 1:30 p.m. Nov. 14 at U.S. District Court in San Francisco.

Scrutiny of system

Regardless of its outcome, the case raises questions about how the university handles allegations of violence from students and whether UC complies with federal laws requiring swift, attentive responses to complaints.

The case comes as the state auditor is looking into how UC and California State University address students’ allegations of abuse. Lawmakers gave the audit priority status in August after UC students testified that they have been discouraged from reporting sexual abuse and that their claims are often met with skepticism. Nine UC Berkeley students and alumni have similar complaints against UC pending with the U.S. Office for Civil Rights.

Opposing views

Lopez’s parents, Margarita and Medardo Lopez, who live in Hawthorne (Los Angeles County), say their daughter and grandson would still be alive if John had properly followed up on a call Milanca Lopez made to John weeks before her death.

“This is a feminist case. It’s about the right to be safe on campus,” said Joel Siegal, the attorney representing the Lopez family. “It’s about the university following policies and procedures.”

UC takes a profoundly different view.

“Because a college or university has no special relationship with its students, its employees do not owe students a duty to protect them from injuries that other students cause,” UC says in court papers prepared by the law firm Lombardi, Loper & Conant in Oakland.

The family’s lawsuit rests heavily on an e-mail received by Lopez’s mother, Margarita Lopez, in March. It was from John, who oversaw Milanca’s housing at UC Berkeley from her arrival in 2007 until her death. At the time, Milanca was preparing for graduate school at UCLA, and John was helping arrange the move.

His e-mail, responding to a request from Margarita for recollections of her daughter, called Milanca “a truly exceptional person” and praised her success at overcoming the difficulties of being a single parent while earning a degree.

But John also said in the e-mail that Milanca phoned him sometime before May 7, 2012, “about a domestic violence incident” and that when he returned her call, she “assured me that everything’s OK.”

Mandate to report

The problem, according to the lawsuit that names John, the regents and Lumbreras as defendants, is that John was a ‘security authority’ mandated to report such matters to the police and to the Title IX officer of the campus.

Title IX is the federal law intended to protect students from sex discrimination.

“There’s an acknowledgement that college students don’t want to call the cops or authorities,” Siegal said. “So lots of people are mandated as security authorities. As a graduate teaching assistant, Lumbreras himself may have been a security authority.”

The university argues that there is no connection between the fatal car crash and whether John reported the alleged abuse.

“Ms. Lopez’s and Xavier’s deaths from Lumbreras’ drunk driving were not reasonably related to any failure by Mr. John to protect her from domestic violence by him,” UC argues. And “even if the drunk-driving accident was a foreseeable consequence of his purported failure to protect her,” the court papers say that “Mr. John did not owe a duty to protect Ms. Lopez from Lumbreras’ domestic violence.”

‘Cry for help’

The family says UC has it wrong.

If Lopez’s “cry for help” had been reported, UC would have begun an investigation and intervention that might have altered events so that she wouldn’t have gotten in the car with Lumbreras on May 18, Siegal said.

The suit also cites an array of domestic violence incidents: neighbors who said they had to protect Lopez and her child when Lumbreras was drunk. That he forced the child to witness sex. And that he went on a drunken rampage in her apartment as she and Xavier took refuge with neighbors.

“We’re not just talking about a 22-year-old woman. We’re talking about a 6-year-old,” Siegal said. “The university invited the 6-year-old to live on campus, then failed in their obligation to protect him.”

The suit, which also accuses Lumbreras of wrongful deaths, seeks unspecified financial damages.

The Lopez case is only the most extreme example of a climate of mistrust about sexual violence that exists across the UC system.

Title IX and the federal Clery Act specify how universities must respond to allegations of sexual violence and other gender-related crimes.

The state audit will look at how UC and CSU report sexual assaults, whether students are discouraged from reporting them, what prevention efforts exist, and at other areas of compliance.

Meanwhile, posters have been appearing across the UC Berkeley campus featuring students in revealing clothing with such captions as “My dress is not a yes.”

The Cal Consent Campaign by the student government features men as well as women.


Nursing Home Liability

Many years ago when my father was in his late eighties and suffering from advanced Parkinson’s disease, my mother confided in her children, myself included, that she was no longer able to care for my dad at home. She asked us for permission to have Dad sent to a nursing home. Neither my brothers nor I felt we had the power to say no to my Mom since we no longer lived at home.

And so began the task that many of my generation are now facing, we searched to find an appropriate nursing home for a parent. However, in our case, the old expression “while man plans God laughs” came to bear. On the first weekend we explored nursing home options, our Dad passed away quietly in his own bed, surrounded by his wife and four sons.

Despite missing my dad and feeling terrible about his death, I felt blessed about the manner of his death. Let’s face it, many people do end up spending months or years in nursing homes. The type of these facilities span a broad spectrum. Some of the ones I have visited resembled exclusive resorts, while others fell far short of those standards.

I am often called by relatives about a family member who has suffered serious personal injury or an untimely death at a nursing home. Those of us who do this sort of litigation know there is a body of federal regulations – the Omnibus Budget Reconciliation Act of 1987 (OBRA) – and substantial case law and literature establishing rules and standards that nursing homes need to follow. While not determinative of liability, these standards help me determine whether the nursing home deviated (breached) standards of care, and proximately caused injury to a loved one.
Some aspects of the standard of care are outlined as follows:

Assessment: Everyone admitted or readmitted to the nursing home must undergo a thorough assessment to identify the resident’s needs and risk factors. That assesment is a document that we will obtain in the discovery phase of the case.

Planning: The assessment’s findings are used to develop a care plan specific to the resident’s needs. Again, after obtaining the assessment we can analyze whether or not the plan specifically was followed. If it was not, our case is strengthened.

Implementation: As with many plans, a plan is only useful if it is communicated to the staff and if the staff follows it. We often find that the plan, while written by administrators and initial social workers, is never communicated or implemented by the “line staff” (i.e., the staff who are involved in the day to day care of your loved one).

Reevaluation: Especially with elders, plans need to change and be reevaluated as medical conditions change. We often discover that some nursing homes sit idly by and never reevaluate patients or change treatment or care plans.

Communication: The staff and administration must be in constant communication with the nursing home resident, his/her physicians and the family, to continually evaluate needs or changing needs.

You might be surprised at the number of times we see that communication in a nursing home facility has not followed these standards of care. If you suspect there is a case of nursing home abuse, give us a call. We take abuse of elders very seriously.