Humphries v. Barber

• Court: District Court, M.D. Pennsylvania
• Decided: September 24, 2021
• Docket: 4:20-cv-00064
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ISAIAH HUMPHRIES, No. 4:20-CV-00064

Plaintiff, (Chief Judge Brann)

v.

THE PENNSYLVANIA STATE UNIVERSITY; JAMES FRANKLIN; and DAMION BARBER,

Defendants.

MEMORANDUM OPINION

SEPTEMBER 24, 2021 In January 2020, former Pennsylvania State University football player Isaiah Humphries sued the University, its head football coach James Franklin, and his former teammate Damion Barber. His headline-generating complaint alleged that while a member of the University’s football team, he was subjected to physical, emotional, and sexual abuse by four of his teammates—to which the school and its football coach turned a blind eye. But for whatever his complaint possessed in attention-grabbing details, it lacked in substance. Since Humphries’ initial filing, this Court has provided him three opportunities to refashion his complaint—most recently after a motion to dismiss filed by all three Defendants. I granted that motion to dismiss in part but provided Humphries leave to amend. I largely allowed his claims against Barber, one of his alleged abusers, to advance; but that was not the case for his claims against the University and Franklin. On these claims, my instructions were clear: cite legal

authority showing that the University and Franklin can be held responsible for the acts of the players; and specify who committed the abuse, when it occurred, what was reported to the University employees, when that report was made, and how those

employees responded. Despite numbering 105 pages, Humphries’ fourth complaint does little better than his third. Rather than delineating a timeline or clearly outlining his legal theories, his latest complaint is rife with vestigial references to arguments and

documents that this Court has told him do not matter. Penn State and Franklin have now moved to dismiss the remaining counts against them under Federal Rule of Procedure 12(b)(6).

I find that Humphries has failed to state a claim upon which relief can be granted against Penn State and Franklin and grant their motion to dismiss Count I, Count II, Count IV, Count V, and Count VIII with prejudice. I. FACTS ALLEGED IN THE COMPLAINT

I will begin by summarizing the facts, which I must accept as true in this motion. Given the complaint’s length, I highlight only the most salient to Humphries’ claims against Penn State and Franklin under Title IX, common law

negligence, negligence per se, and negligent infliction of emotional distress. Isaiah Humphries arrived at Penn State University in January 2018, fresh off an award-winning Texas high school career.1 As a prep star, the 6-foot, 195-pound

safety was highly recruited and received scholarship offers from some thirty-odd schools.2 Penn State entered the sweepstakes during Humphries sophomore year, with Head Coach James Franklin offering Humphries a full athletic scholarship in February 2016.3 The near two years that followed featured the pageantry now

attendant to big-time college football recruiting. Humphries traveled north several times to visit the campus, speak with coaches, and attend recruiting events.4 And Franklin and his staff reciprocated: making the journey to Texas once to take in one

of Humphries’ high school games from the bleachers; and again, just over a month later, to visit him at his home.5 Throughout this recruiting odyssey, Franklin and his staff emphasized that

attending Penn State would allow Humphries to maximize his athletic and academic potential and that the football coaches would “protect him”, keep him safe, and treat him like a son.6 Ultimately, Franklin and his staff’s efforts bore fruit. After two years of courtship, Humphries accepted Penn State’s offer on December 20, 2017

1 Doc. 58 at ¶ 90. 2 Id. at ¶ 91. 3 Id. at ¶ 95. 4 Id. at ¶¶ 98–99 & 101. 5 Id. at ¶¶ 102 & 107–108. 6 Id. at ¶¶ 97, 101 & 107. and arrived on campus just a few weeks later for the start of spring practice—again, to Franklin’s promises of a family-like atmosphere.7

But not long after Humphries arrival, the marriage soured. In his complaint, Humphries alleges that his ten-month stint at Penn State was marred by a campaign of harassment and hazing by four fellow members of the Penn State football team.8

Humphries’ recounting of three specific events and a course of habitual conduct names four player-perpetrators: (1) Damion Barber and (2) Yetur Gross-Matos, defensive linemen who enrolled in the Fall of 2017; and (3) Micah Parsons and (4) Jesse Luketa, linebackers and—like Humphries—winter 2018 enrollees.9 In this

suit, Humphries names only one, Damion Barber, as a Defendant. These players’ campaign included verbal harassment: Humphries recounts the players telling him and teammates “I am going to fuck you”; and that they planned to make them “their bitch because this is prison . . . .”10 He also recalls the

players’ shocking allusions to sexual abuse committed by former Penn State football coach, Jerry Sandusky—with the players telling him “I am going to Sandusky you” and “this is Jerry . . . .”11

7 Id. at ¶¶ 111, 115–116. 8 Id. at ¶ 143. 9 Id. at ¶¶ 125 & 127. 10 Id. at ¶¶ 121 & 123. 11 Id. at ¶¶ 146–150. But as Humphries tells it, the players didn’t stop at verbal threats. Some actions he details are childish but benign. For instance, Humphries alleges that the

Barber, Gross-Matos, Parsons, and Luketa would take players’ clothing and not return them.12 The players’ other alleged actions, however, are far more troubling. In his

complaint, Humphries describes how he and other players were wrestled to the ground by a member of the foursome and sexually harassed while restrained.13 Sometimes, the offending player would simulate a “humping action” while on top of the player.14 Other times, a member of the foursome would “place” or “smack”

his genitals on the victim’s face.15 Humphries also recounts how Barber, Gross- Matos, Parsons, and Luketa would place their penises on the pinned player’s buttocks or face and “stroke [their] genitalia simulating the action of ejaculation.”16

This harassment also extended into the locker room showers. There, Barber, Gross- Matos, Parsons, and Luketa would put “their penises between the cheeks of the [victim’s] buttocks” and on other parts of Humphries and other players’ bodies.17 Although Humphries describes these acts in graphic detail, in other key

aspects his descriptions are wanting. He flatly alleges that two- to three-times per

12 Id. at ¶ 151. 13 Id. at ¶¶ 152–156. 14 Id. at ¶ 152. 15 Id. at ¶¶ 153–154. 16 Id. at ¶¶ 155–156. 17 Id. at ¶¶ 157–158. week on average, the four players “subjected [him] to the aforementioned hazing and harassment . . . .”18 But he fails to describe which of the four players committed

specific acts, distinguish whether he was subject to persistent sexual violence two- to three-times per week or merely the theft of clothing, or detail which acts he reported to the coaching staff.

In his latest complaint, Humphries adds some detail, identifying three dates when he was hazed and harassed by particular players; but even so, his lack of specificity persists.19 He still does not allege what conduct occurred. For instance:  On February 18, he claims that Yetur Gross-Matos “victimized” him “with

the aforementioned hazing and harassment” in another student-athlete’s Beaver Hall dorm room.20  On March 26, he alleges that Micah Parsons harassed him at the Morgan

Academic Center—again, without identifying which type of verbal and physical conduct occurred.21 Later in his pleading, Humphries details a fight that occurred that day after Parsons threw a pail of water on Humphries while he was napping in an academic building; from there, things escalated, with

18 Id. at ¶ 160. 19 Id. at ¶¶ 162–167. 20 Id. at ¶ 162. 21 Id. at ¶ 163. Humphries pulling a knife on Parsons to escape a choke-hold.22 This series of events notably diverges from his general allegation of sexual violence—

appearing to be a purely physical.23  And, finally, on June 14, he says that Damion Barber and Jesse Luketa also “victimized” him “with the aforementioned hazing and harassment” in the

Lasch football building locker room.24 Here, again, details inserted later in the pleading seem to suggest that on this occasion Barber threatened to “‘fuck’ the plaintiff ‘in the ass’” and “attempted to fondle his genitalia”; but the complaint is silent on Luketa’s conduct that day.25

In making these particular allegations, Humphries also begins to detail his reports to the coaching staff. He first reports seeking help from the coaching staff after the Parsons water pail incident in March; that evening, he reported the incident

to Coach Franklin.26 But in conversations with Humphries and his father in the days

22 Id. at ¶¶ 179(2)–183(2). Due to misnumbering in Humphries’ complaint, some paragraphs are repeated. I use a “(2)” when I refer to the second paragraph with that number. 23 See id. ¶¶ 146–149 & 152–159 (detailing verbal and physical sexual harassment and abuse). The purely physical general allegations are fare more limited; I count just two. Id. ¶ 150 (“[T]he hazing and harassment undertaken by Defendant Damion Barber, Micah Parsons, Yetur Gross-Matos, and Jesse Luketa included intimidating, threatening and bullying selected members of the Penn State football team.”) and id. ¶ 151 (“[T]he hazing and harassment undertaken by defendant Damion Barber, Micah Parsons, Yetur Gross- Matos, and Jesse Luketa included taking the clothes of selected members of the Penn State football team, such as the plaintiff, and not returning them.”). 24 Id. at ¶ 166. 25 Id. at ¶ 177. 26 Id. at ¶ 184. that followed, Franklin chastised Humphries for having pulled a knife and told him that he should have just “gotten [his] ass beat.”27 Franklin ultimately punished both

Parsons and Humphries—with Humphries being given extra early morning workouts while Parsons was placed on conduct probation through the end of the fall semester.28

After this report, Humphries alleges that the four players retaliated and continued to haze and harass him to get him to quit.29 In turn, Humphries’ outreach to coaches picked up—but, in his view, to little avail. A few weeks after the Parsons altercation, Humphries recounts telling an assistant coach, Timothy Banks, that he

was being harassed; Banks, however, responded by telling him to come to practice the next day without the drama.30 A few days later, Humphries’ father called Banks to discuss his son’s mistreatment; this time, Banks allegedly responded by saying

that Humphries “needed to stop acting as if he was affluent, refined, and sophisticated.”31 And, in late May, Humphries’ father would again call Banks, this time about a physical threat made by Luketa.32

27 Id. at ¶¶ 186–191. 28 Id. at ¶¶ 162–167. 29 Id. at ¶¶ 194–196. 30 Id. at ¶ 172. 31 Id. at ¶ 174. 32 Id. at ¶ 175. Humphries’ June incident involving Barber and Luketa generated one final flurry of reports.33 In the week that followed, Humphries and his father again spoke

to Franklin and various members of his staff about the four players’ continuing harassment—particularly Barber’s attempt to fondle Humphries in the locker room.34 But in Humphries’ telling, Franklin and his staff took no action to protect him.35 To the contrary, Humphries alleges that his coaches retaliated against him

for making the reports by unfairly evaluating his performance, “scorning” him, denying him playing time, pitting him against teammates in drills in a way that was designed to ensure his failure, having the team’s academic advisor “censure him”,

not allowing him a medical accommodation for anxiety and narcolepsy, and pushing him to medically retire.36 Looking back, Humphries contends that these players’ hazing and harassment

was a part of his initiation onto the team, retaliation for his fight with Parsons, and punishment for not living up to the standard of “toughness and masculinity expected of a collegiate football player.”37 In doing so, Humphries highlights traits that he argues led to his teammates’ ire and coaches’ neglect.

33 Id. at ¶¶ 177–176(2). 34 Id. at ¶¶ 177–180. 35 Id. at ¶ 187. 36 Id. 37 Id. at ¶¶ 144–145, 194–196. He notes that, unlike the model Penn State football player and his four teammates:

 He is an accomplished musician, skilled in the guitar, piano, and ukulele.38  He speaks “English with diction that provided clarity and a distinctiveness of pronunciation of speech” and doesn’t use vulgarity.39

 He has a “well-groomed and refined appearance,” dresses in a “sophisticated style”, and presents with “an appearance and mannerism of affluence . . . .”40  He was raised to be compassionate, sensitive, and kind and not resolve

conflicts through violence.41  And he does “not embrace the angry gangster or thug persona.”42 Regardless of the cause, by August 2018 it became clear that the hazing and harassment had taken its toll: Humphries reports having become anxious, sleepless,

and depressed—an assistant coach even called Humphries’ father because he was concerned that Humphries was suicidal.43 In late November, after a season where Humphries did not receive any playing time, they separated, with Humphries

announcing his transfer and leaving Penn State. But even their separation was not amicable: Humphries alleges that the staff spoke poorly of him to other football

38 Id. at ¶ 128. 39 Id. at ¶¶ 129–130. 40 Id. at ¶¶ 131–133. 41 Id. at ¶¶ 134–137. 42 Id. at ¶ 138. 43 Id. at ¶¶ 176(2) & 227. coaches on his way out the door.44 By January, however, the divorce was finalized; and Humphries moved on to the University of California, Berkeley.45

II. LEGAL STANDARD Before I move on to the merit of the claims that Humphries and Penn State’s rocky marriage and messy divorce produced, I will first review the relevant legal

standard. Under Federal Rule of Civil Procedure 12(b)(6), the Court dismisses a complaint, in whole or in part, if the plaintiff has failed to “state a claim upon which relief can be granted.” A motion to dismiss “tests the legal sufficiency of a claim”46 and “streamlines litigation by dispensing with needless discovery and factfinding.”47

“Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law.”48 This is true of any claim “without regard to whether it is based on an outlandish legal theory or on a close but ultimately unavailing one.”49

Following the Roberts Court’s “civil procedure revival,”50 the landmark decisions of Bell Atlantic Corp. v. Twombly51 and Ashcroft v. Iqbal52 tightened the

44 Id. at ¶ 180 45 Id. at ¶ 177(2). 46 Richardson v. Bledsoe, 829 F.3d 273, 289 n.13 (3d Cir. 2016) (Smith, C.J.) (citing Szabo v. Bridgeport Mach., Inc., 249 F.3d 672, 675 (7th Cir. 2001) (Easterbrook, J.)). 47 Neitzke v. Williams, 490 U.S. 319, 326–27 (1989). 48 Id. at 326 (citing Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)). 49 Id. at 327. 50 Howard M. Wasserman, The Roberts Court and the Civil Procedure Revival, 31 Rev. Litig. 313, 316, 319–20 (2012). 51 550 U.S. 544 (2007). 52 556 U.S. 662 (2009). standard that district courts must apply to 12(b)(6) motions.53 These cases “retired” the lenient “no-set-of-facts test” set forth in Conley v. Gibson and replaced it with a

more exacting “plausibility” standard.54 Accordingly, after Twombly and Iqbal, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”55 “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”56 “Although the plausibility standard does not impose a probability requirement, it does require a pleading to

show more than a sheer possibility that a defendant has acted unlawfully.”57 Moreover, “[a]sking for plausible grounds . . . calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of [wrongdoing].”58

The plausibility determination is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.”59 No matter the context, however, “[w]here a complaint pleads facts that are ‘merely consistent

53 Id. at 670 (citing Conley v. Gibson, 355 U.S. 41, 45–46 (1957)) 54 Id. 55 Id. at 678 (quoting Twombly, 550 U.S. at 570). 56 Id. 57 Connelly v. Lane Const. Corp., 809 F.3d 780, 786 (3d Cir. 2016) (Jordan, J.) (internal quotation marks and citations omitted). 58 Twombly, 550 U.S. at 556. 59 Iqbal, 556 U.S. at 679. with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.’”60

When disposing of a motion to dismiss, the Court “accept[s] as true all factual allegations in the complaint and draw[s] all inferences from the facts alleged in the light most favorable to [the plaintiff].”61 However, “the tenet that a court must

accept as true all of the allegations contained in the complaint is inapplicable to legal conclusions.”62 “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”63 As a matter of procedure, the United States Court of Appeals for the Third

Circuit has instructed that: Under the pleading regime established by Twombly and Iqbal, a court reviewing the sufficiency of a complaint must take three steps. First, it must take note of the elements the plaintiff must plead to state a claim. Second, it should identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth. Finally, when there are well-pleaded factual allegations, the court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.64

60 Id. at 678 (quoting Twombly, 550 U.S. at 557). 61 Phillips v. Cnty. of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008) (Nygaard, J.). 62 Iqbal, 556 U.S. at 678; see also Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (Nygaard, J.) (“After Iqbal, it is clear that conclusory or ‘bare-bones’ allegations will no longer survive a motion to dismiss.”). 63 Iqbal, 556 U.S. at 678. 64 Connelly, 809 F.3d at 787 (internal quotations and citations omitted). III. DISCUSSION A. Humphries fails to state a claim for Common Law Negligence and Negligence Per Se

Under Rule 12(b)(6)’s standard, this Court first considers whether Humphries has sufficiently pled a claim of common law negligence and negligence per se against Penn State and Franklin. Negligence’s requirements are well-trodden: “To establish a prima facie case of negligence, a plaintiff must plead that ‘the defendant owed a duty of care to the plaintiff, the defendant breached that duty, the breach

resulted in injury to the plaintiff, and the plaintiff suffered an actual loss or damage.’”65 Penn State and Franklin’s first line of attack is that neither party owed a legal

duty to protect Humphries. While “each person may be said to have a relationship with the world at large that creates a duty to act where his own conduct places others in peril, Anglo-American common law has for centuries accepted the fundamental premise that mere knowledge of a dangerous situation, even by one who has the

ability to intervene, is not sufficient to create a duty to act.”66 Thus, the general rule under Pennsylvania law is that parties ordinarily owe “no duty to control the conduct of a third party to protect another . . . .”67

65 Walters v. UPMC Presbyterian Shadyside, 187 A.3d 214, 221 (Pa. 2018) (quoting Martin v. Evans, 711 A.2d 458, 461 (Pa. 1998)). 66 Wenrick v. Schloemann-Siemag Aktiengesellschaft, 564 A.2d 1244, 1248 (Pa. 1989). 67 Emerich v. Philadelphia Ctr. for Hum. Dev., 720 A.2d 1032, 1036 (Pa. 1998). But this general rule is not without exceptions. In reply, Humphries sets forth five theories that he says show that Penn State and Franklin owed a duty to protect

him under existing law:  First, that Penn State and Franklin have created a duty through their contractual relationship.68

 Second, that the University assumed a duty through their administrative policies and disciplinary decisions.69  Third, that Pennsylvania law recognizes a duty-creating special relationship between athletes and their schools.70

 Fourth, that University owed a duty as a possessor of land.71  And, fifth, that he was owed a statutory duty under the Timothy J. Piazza Antihazing Law.72

Whether the Defendants owed Humphries a duty under any of these theories is a question of law that this Court can resolve on a motion to dismiss.73 In assessing these state law claims, I am mindful that the “disposition of this

case must be governed by a prediction of what a [Pennsylvania] court would do if

68 Doc. 72-1 at 21–22. 69 Id. at 22–24. 70 Id. at 25–29. 71 Id. at 29–31. 72 Id. at 16–21. 73 Perez v. Great Wolf Lodge of the Poconos, LLC, 200 F. Supp. 3d 471, 478 (M.D. Pa. 2016). confronted with the facts before us.”74 And I heed the Pennsylvania Supreme Court’s instruction that because “negligence evolves through either directly

applicable decisional law or by analogy, . . . a defendant is not categorically exempt from liability simply because appellate decisional law has not specifically addressed a theory of liability in a particular context.”75 Just as “[a] diversity litigant should

not be drawn to the federal forum by the prospect of a more favorable outcome than he could expect in the state courts. . . . [,] neither should he be penalized for his choice of the federal court by being deprived of the flexibility that a state court could reasonably be expected to show.”76

1. The Contractual Duty of Care Turning now to Humphries’ first theory: Penn State and Franklin owed a duty to protect him from his teammates because of promises that Franklin made to him during his recruitment and ten-month stint on the team.77 This argument recycles a

claim that I rejected in the last go-around.78 This time, Humphries alters the basis ever so slightly—adding that Franklin promised to protect him as if he “was a ‘son’

74 Becker v. Interstate Properties, 569 F.2d 1203, 1205 (3d Cir. 1977). 75 Scampone v. Highland Park Care Ctr., LLC, 57 A.3d 582, 599 (Pa. 2012). 76 Becker, 569 F.2d at 1206. 77 Doc. 72-1 at 21–22. 78 Doc. 56 at 19 (reported as Humphries v. Pennsylvania State Univ., 492 F. Supp. 3d 393, 407 (M.D. Pa. 2020)). or a ‘family member’”79—but otherwise resorts to the same grounds alleged in his second complaint.80

Put plainly: I didn’t reject this argument in the last complaint for want of promises; I rejected the argument because Humphries failed to provide a single legal basis to impose a tort duty because of a party’s promises.81 And in his latest pleading, Humphries again cites no law.82

While he does not delve into the details, Humphries’ claim straddles the fault between contract and tort law. Rather than allowing these areas of law to meld together, courts have sought to maintain this rocky (and often unclear) divide over

the last century. And in doing so, they have developed a doctrine to deal with claims like Humphries’: the gist of the action doctrine. Pennsylvania courts have employed this doctrine to deal with Trojan Horse torts—that is, instances when plaintiffs have

clothed a breach of contract claim in negligence terms so they can recover noneconomic damages (like pain and suffering) that they could not recover under contract law.83 Under this doctrine, if: [T]he duty breached is one created by the parties by the terms of their contract—i.e., a specific promise to do something that a party would not ordinarily have been obligated to do but for the existence of the contract—then the claim is to be viewed as one for breach of contract. . . . If, however, the facts establish that the claim involves the

79 Doc. 58 at ¶¶ 279 & 300. 80 Doc. 72-1 at 21; Humphries, 492 F. Supp. 3d at 407. 81 Id. 82 Doc. 72-1 at 21-22. 83 See Bruno v. Erie Ins. Co., 106 A.3d 48, 64–66 (Pa. 2014). defendant’s violation of a broader social duty owed to all individuals, which is imposed by the law of torts and, hence, exists regardless of contract, then it must be regarded as a tort.84

In short, having a contract won’t stymie a plaintiff’s tort claim—but the duty that the defendant breached must exist independent of the contract. If that duty doesn’t exist independently, the tort claim must be dismissed.85 Because of this posture, defendants have historically deployed the doctrine offensively—arguing that the alleged breach of a duty stemmed from the parties’ contractual relationship, which would limit the plaintiff to a recovery on the contract, rather than in tort.86 Perplexingly, Humphries implicates the doctrine here—explicitly invoking

the language of contract law in his papers. His latest complaint alleges that Penn State and Franklin’s breach “was in failing to deliver on their promises to protect [him] as if he was a ‘son’ or ‘family’.”87 While his reply brief parrots the language

of promissory estoppel, arguing that his complaint shows how he “relied on” Penn State and Franklin’s promise “to his detriment.”88 Putting aside any questions about whether Penn State and Franklin’s promises to maximize Humphries’ potential and “protect him like a son” are enforceable (which I doubt), Humphries has stumbled

into what most plaintiffs carefully tip-toe around: the gist of the action doctrine.

84 Id. at 68. 85 Id. at 60. 86 See id. at 61–67. 87 Doc 58. at ¶ 300; see also id. at ¶ 279. 88 Doc. 72-1 at 22. Because “the duty breached is one created by the parties by the terms of their contract . . . the claim is to be viewed as one for breach of contract”—not

negligence.89 Far from creating a duty under negligence law, Humphries’ promise-based theory makes the case for its own dismissal. This Court obliges.

2. Assumption of Duty Humphries next argues that Penn State and Franklin assumed a duty to protect him.90 He cites three supposed duty-creators: Penn State’s decision to place Micah Parsons on conduct probation,91 its requirement that students adhere to a code of

conduct and set of administrative policies,92 and its same requirement for staff.93 I rejected a similar argument in the last motion to dismiss, holding that adopting conduct policies did not mean that the University or its football coach had assumed a duty to protect Humphries from violators—or violations—of those policies.94

To try to wriggle free from this holding, Humphries refashions his argument in his latest complaint in a few ways. First, he points to the Restatement (Second) of Torts § 323 (1965) as a basis for his assumption of duty claim—his previous

89 Bruno, 106 A.3d at 68. 90 Doc. 72-1 at 22. 91 Doc. 58 at ¶¶ 179(2)–193 & 281. 92 Id. at ¶¶ 260–261. 93 Id. at ¶¶ 262–277. 94 Humphries, 492 F. Supp. 3d at 407. complaint, in contrast, cited no authority.95 Second, he asserts the University’s placement of Parsons on conduct probation as a new ground for the University’s

assumption of a duty.96 And, third, he argues that rather than the University assuming a duty to protect students from violations of its policies based on a special relationship between the University and its students (the argument I rejected last

time), that duty instead arises from an employer-employee-created special relationship. In other words, that by enacting policies that its employees had to follow, the University assumed new duties.97 None of these revisions change the result.

a. Humphries’ Revised Argument Under Section 323 and the Addition of Parsons’ Probation

Humphries’ first two revisions are intertwined; so, I will consider them in tandem, beginning with the first, which tethers his claim that Penn State and Franklin assumed a duty through their affirmative conduct to a restatement provision, before moving on to see how this provision applies to his second revision—Parsons’ probation.98 Humphries starts by arguing that “Pennsylvania courts have adopted the Restatement (Second) of Torts § 323 (1965), as the law of Pennsylvania”99 and that

95 Doc. 58. at ¶ 281; see Doc. 50-1 at 39–40. 96 Doc. 58 at ¶ 281; Doc. 72-1 at 22. See also Doc. 58 at ¶¶ 179(2)-193. 97 Doc. 72-1 at 23–24. 98 Id. at 22, 24. 99 Id. at 22. within this restatement provision’s framework, his amended complaint “permits the reasonable inference [that] the Penn State Defendants’ affirmative conduct gave rise

to an assumed duty of care . . . to protect the plaintiff from abusive behavior.”100 The broader framing of the question is correct: whether Penn State and Franklin owed a duty to protect Humphries based on their affirmative conduct

implicates section 323.101 This restatement provision—known as the “Good Samaritan exception”102—evades Pennsylvania’s general rule that there is no duty to protect against harm by third parties.103 The codified text lays out the consequences for those who negligently come to the aid of another:

One who undertakes, gratuitously or for consideration, to render services to 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, if

(a) his failure to exercise such care increases the risk of such harm; or (b) the harm is suffered because of the other's reliance upon the undertaking.104

Humphries appears to argue that he falls under part (b), claiming that: (1) Penn State and Franklin “render[ed] services to [him]” by passing (and promising to

100 Id. at 24. 101 See Feld v. Merriam, 485 A.2d 742, 746 (Pa. 1984) (noting that Section 323 is an accurate statement of law in the Commonwealth). 102 Turbe v. Gov’t of Virgin Is., 938 F.2d 427, 430 (3d Cir. 1991). 103 Jean v. Bucknell Univ., 2021 WL 1516467, at *6 (M.D. Pa. Apr. 16, 2021). 104 Restatement (Second) of Torts § 323; Feleccia v. Lackawanna Coll., 215 A.3d 3, 14 (Pa. 2019). enforce) student and staff conduct policies and placing Parsons on probation; (2) the Defendants should have known these services were “necessary” for his protection;

(3) he relied on these services; and (4) he was harmed by the Defendants’ negligence in carrying those services out.105 But Humphries’ cursory framing fails to deal with two nuances. First off,

Pennsylvania takes a cabined approach to this restatement provision, as this Court noted in a recent on-campus hazing case: Pennsylvania courts’ treatment of section 323 can be described as “restrictive.” Promisees “may not expect more than is offered,” meaning that they may only recover from a party who negligently performs a promise, not one who makes a promise that is wholly inadequate. Further, courts have found parties liable under section 323 only where they have engaged in a specific undertaking, as opposed to a general promise. For example, a landlord’s offer to replace a broken lock constitutes a specific undertaking, but a general promise to provide security on the premises does not.106

And, on a second, related note, “previous courts have found that simply enacting policies does not create new duties for entities.”107 In rejecting college-policy based claims, these courts emphasized the law’s retreat from the in loco parentis standard as college students won greater privacy and autonomy—and declined to create a duty that would effectively reimpose a standard at odds with societal conditions.108

105 See Doc. 58 at ¶¶ 179(2)–193(2), 281; Doc. 72-1 at 22. 106 Jean, 2021 WL 1516467, at *7. 107 Humphries, 492 F. Supp. 3d at 407. 108 See, e.g., Alumni Ass’n v. Sullivan, 572 A.2d 1209 (Pa. 1990); Fitzpatrick v. Universal Tech. Inst., Inc., 2009 WL 2476639 (E.D. Pa. Aug. 13, 2009); Booker v. Lehigh Univ., 800 F. Supp. 234 (E.D. Pa. 1992); Millard v. Osborne, 611 A.2d 715 (Pa. Super. 1992). Against this backdrop, the flaws in Humphries’ section 323 claims surface. First, his claim that Penn State and Franklin “undertook a duty to control football

players . . . to conform their behavior to the Student Code of Conduct and Administrative Policies” is nothing more than a policy-based claim that this Court, and other courts, have rejected.109

Even if you set aside the college cases, the claim does no better. Section 323 requires a specific undertaking.110 The policies that Humphries invokes—read generously—only provide a general promise of protection. (A less generous reading: these hazing, harassment, and gender-based discrimination banning

policies provide no general promise of protection at all—only a promise of consequences for transgressors.) Humphries’ second claim—and second revision—that Penn State and

Franklin assumed a duty by placing Parsons on probation suffers similar defects. Humphries alleges that after the water pail-instigated fight, Penn State and Franklin “plac[ed] Micah Parsons on conduct probation for the purpose of protecting the plaintiff from [Parsons’] further hazing, abuse, and harassment . . . .”111 Even if this

Court accepts Humphries’ rather conclusory allegation that Parsons’ probation was

109 Doc. 72-1 at 22; see Humphries, 492 F. Supp. 3d at 407 (finding that the code of conduct and school administrative policies did not impose an assumed duty of care on the defendants). 110 Jean, 2021 WL 1516467, at *6; Doc 58 at ¶¶ 30-50 & 51–67, 260(2)–261(2). 111 Doc. 58. at ¶ 193. intended for his protection—and could thus be seen as the University guaranteeing his protection—its logical extension short-circuits. Each time that a college put a

student on probation, it would become “an insurer of the safety of its students.”112 That’s unacceptable. Pennsylvania law on this count is clear: colleges are no longer subject to an in loco parentis standard; and section 323 warrants a “restrictive approach . . . .”113 Humphries has provided no grounds for us to predict that the

Pennsylvania Supreme Court would depart from those approaches in this case. b. Humphries’ Employer-Employee Spin Humphries’ third special relationship revision in his latest complaint recasts

his argument that Penn State and Franklin assumed a duty through their enactment and enforcement of school policies.114 His previous complaint traversed the ground that I just covered, arguing that because the school had a policy it owed a duty to protect students from violators and violations of that policy.115 His most recent

complaint adds another link to the chain. Humphries now invokes the employer- employee special relationship, claiming that because school employees under Penn State and Franklin’s control had to enforce hazing- and harassment-prohibiting

112 Bradshaw v. Rawlings, 612 F.2d 135, 138 (3d Cir. 1979). 113 James v. Duquesne Univ., 936 F. Supp. 2d 618, 639 (W.D. Pa. 2013). 114 Doc. 72-1 at 24. 115 Doc. 50-1 at 39–40. school policies, Penn State and Franklin can be held liable if those employees fail to prevent hazing and harassment.116

In service of this employer-employee special relationship argument, Humphries points the Court to two cases and § 317 of the Restatement (Second) of Torts. It is true, as Humphries argues, that in “some cases” an employer-employee

relationship is sufficiently “special” to warrant imposing a duty on the employer to prevent its employee from creating “an unreasonable risk of bodily harm” to third parties.117 But the facts that Humphries alleges make it clear that this is not one of those cases.

The first duty-creating case that Humphries likens his own to is Walters v. UPMC Presbyterian Shadyside.118 There, the Pennsylvania Supreme Court considered a negligence claim against a UPMC hospital whose former employee had gone on to infect several people with Hepatitis C while employed elsewhere.119

During his employment at various hospitals, the employee had satisfied a drug habit by injecting himself with hospital pain killers.120 He tried to hide his habit by refilling the used syringe with saline and putting it back, but in the process, he ended

up passing along hepatitis when the needle was used later.121 The UPMC hospital

116 Id. 117 Id. (emphasis added); Restatement (Second) of Torts § 317. 118 187 A.3d 214 (Pa. 2018). 119 Id. at 219–21. 120 Id. 121 Id. caught him in the act, fired him, and reported the incident to the state attorney general’s office; but they did not report him to the United States Drug Enforcement

Agency, as federal law required.122 Even after being fired, the employee managed to land jobs at other hospitals, where he carried on his secretive narcotics use— eventually infecting the plaintiff.123

The Pennsylvania Supreme Court wrestled over whether the hospital owed the plaintiff a duty to control the unauthorized actions of their former employee by making the federally required report.124 And while that court ultimately determined that the hospital owed a duty, it did so despite its “reservations” about whether the

ex-employee and the hospital “truly had a special relationship.”125 It just so happened that other considerations tipped the scales in favor of applying a limited duty to report: the federal government had expressed a commitment to controlling

powerful drugs and identifying individuals who moved them illegally; the hospital’s failure to report led to significant harms; and the duty could be satisfied by an act that the hospital was already required to take.126 Put simply: there’s a big difference between imposing a duty to protect third

parties by making a legally required report when a hospital employee steals narcotics

122 Id. at 219–21, 230. 123 Id. at 219–21. 124 Id. at 232–35. 125 Id. at 240–42. 126 Id. (and, in the process, exposes patients to blood-borne diseases) and imposing a duty on a university to ensure that its employees prevent students from being harmed by

violations of the school’s code of conduct and administrative policies. So Walters does nothing for Humphries here. The same is true of the other case that Humphries cites: R.W. v. Manzek.127

There, the Pennsylvania Supreme Court considered a negligence claim stemming from a ten-year-old child’s brutal rape and beating.128 The child had entered the home of the perpetrator while trying to make a candy sale for a school fundraiser.129 After this heinous crime, the child’s parents sued the companies that ran the

fundraiser, alleging that they had a duty to warn the children, but that instead the companies—through an employee—had encouraged the children to go out and make sales without telling them about possible dangers.130 The court ultimately found that

there was a duty because the companies had a sent a representative to recruit the children—enticing them with prizes and classroom parties—and because the risk of an attack was a “foreseeable consequence of encouraging children to sell goods to strangers.”131

127 888 A.2d 740 (Pa. 2005). 128 Id. at 741–42. 129 Id. at 742–44. 130 Id. 131 Id. at 747 & 752. This Court, however, fails to see how this case supports Humphries’ argument that Penn State and Franklin assumed duty to protect Humphries through an

employer-employee relationship. In Manzek, the court found that the companies could be found liable when their employee failed to warn schoolchildren that he had recruited to a fundraiser about the risks posed by strangers.132 Humphries is not a

schoolchild. Nor is he asking to have been warned. Instead, he claims that University employees should have been required to protect him, an adult, from school policy-proscribed conduct; and that because those employees failed, he should be able to hold the University and its football coach to account. That theory

is untenable under Pennsylvania law. “[I]t must be remembered that the concept of duty amounts to no more than ‘the sum total of those considerations of policy which led the law to say that the particular plaintiff is entitled to protection’ from the harm suffered.”133 Just as

Humphries cannot conjure a duty from the school’s enactment of policies, he cannot smuggle in that same duty through Penn State and Franklin’s supervision of employees that are supposed to enforce the policies. It is a distinction without a

difference and the result is the same: “simply enacting policies does not create new duties for entities.”134

132 Id. at 751–52. 133 Althaus, 756 A.2d at 1168 (quoting William L. Prosser, Palsgraf Revisited, 52 Mich. L. Rev. 1, 14–15 (1953)). 134 Humphries, 492 F. Supp. 3d at 407. 3. Humphries’ Special Relationship-Created Duty Theories Humphries next claims that Penn State and Franklin owed him a duty of care

because they had a special relationship.135 Pennsylvania law recognizes an exception to the no-duty-to-protect-another rule “if a defendant stands in some special relationship with either the person whose conduct needs to be controlled or

in a relationship with the intended victim of the conduct, which gives the intended victim a right to protection.”136 Humphries puts forward two grounds. First, he argues that this Court’s previous holding—that Pennsylvania law does not recognize a special relationship

between a university and its athletes—was mistaken and urges us to reconsider.137 Second, he contends that by fostering a “unique,” “family-like” atmosphere on its football team, Penn State and Franklin created a special relationship through their affirmative conduct and thus owed Humphries a duty.138

a. Kleinknecht—Revisited Turning first to Humphries argument that Pennsylvania recognizes a special relationship between student-athletes and their schools. In assessing the motion to

dismiss Humphries’ previous complaint, this Court reviewed the Pennsylvania Supreme Court’s 2019 decision, Feleccia v. Lackawanna College, and the Third

135 Doc. 72-1 at 25–29. 136 Emerich, 720 A.2d at 1036. 137 Doc. 72-1 at 25–27. 138 Doc. 72-1 at 27–29. Circuit’s 1993 decision, Kleinknecht v. Gettysburg College. As a threshold matter, I noted that these two cases involved a much narrower question: whether colleges

owed their athletes a duty to have qualified medical personnel on hand for athletic events. I then found that Feleccia was controlling, and that Pennsylvania law did not recognize the special relationship-created duty that Humphries put forward.139

Humphries now argues that my analysis missed the mark. He insists that a “close reading” of Feleccia shows that the Pennsylvania Supreme Court left Kleinknecht undisturbed; that I am compelled to follow Kleinknecht, as it is Third Circuit precedent; and that Kleinknecht recognized the duty that he has articulated

here.140 Let’s start with Humphries’ first two contentions: that in Feleccia the Pennsylvania Supreme Court chose not to address whether there is a special

relationship between a college and its student-athletes, leaving Kleinknecht undisturbed; and that, as a result, this Court should follow this Third Circuit precedent.141 In Feleccia, the Pennsylvania Supreme Court considered an appeal from a

Superior Court decision recognizing that “a college has a duty of care to its intercollegiate student athletes requiring it to have qualified medical personnel at

139 Humphries, 492 F. Supp. 3d at 407–08. 140 Doc. 72-1 at 25-27. 141 Doc. 72-1 at 25. athletic events . . . and to provide adequate treatment in the event that an intercollegiate athlete suffers a medical emergency.”142 The Superior Court’s

recognition of this duty rested on the Third Circuit’s decision in Kleinknecht.143 Much like Kleinknecht—a case in which the Third Circuit predicted that the Pennsylvania Supreme Court would have found that the college owed a duty to have

medical personnel on hand to tend to an athlete that died from a cardiac event during a school lacrosse practice—Feleccia also involved a college sports practice.144 In a slight twist, Feleccia involved an unlicensed trainer (there were no trainers on hand for the practice in Kleinknecht) wrongly telling an athlete that he was okay to return

to practice, resulting in his further injury.145 The Pennsylvania Supreme Court found that the Superior Court panel erred in relying on Kleinknecht to find that the college owed its injured athlete a duty to provide qualified medical personnel at the practice.146 The Supreme Court chastised

the Superior Court for its reliance on “non-binding federal case law” before launching into the meat of its critique: the law had changed since Kleinknecht was

142 Feleccia, 215 A.3d at 12 (quoting Feleccia v. Lackawanna College, 156 A.3d. 1200, 1215 (Pa. Super. 2017)) (internal quotations and alterations omitted). 143 Id. 144 Id. at 8-9; Kleinknecht, 989 F.2d at 1369. 145 Feleccia, 215 A.3d at 12. In total, the case involved two injured players and two unlicensed trainers. Only one player, Feleccia, was given erroneous medical advice from a trainer; the other player’s claim centered on the enforceability of a liability waiver and the coaching staff’s negligence—he was injured during the dangerous Oklahoma drill— and did not involve improper medical advice. Id. at 8–12. 146 Id. at 13. decided.147 Seven years after the Third Circuit’s prediction, the Pennsylvania Supreme Court decided Althaus ex rel. Althaus v. Cohen, 756 A.2d 1166 (2000),

which set forth five factors that courts must analyze before creating a new common law duty of care.148 In considering whether Lackawanna College owed its athletes a duty—a new common law duty—the Superior Court had not undertaken an Althaus analysis.149 And these factors, as the Pennsylvania Supreme Court highlighted in

Feleccia, are essential; they keep courts within their constitutional bounds and prevent them from straying into “broad-scale policymaking”—a task for which they are ill-suited.150 So Kleinknecht was not only a non-binding prediction, it was a non-

binding prediction that lacked the predicate Althaus analysis. But when faced with this error, rather than applying the Althaus factors itself or sending the case back to the Superior Court to do so, the Pennsylvania Supreme

Court determined that it need not answer whether to create a new duty because there was (as I delve into in the next section) an alternative existing duty.151 And it is on this thin reed that Humphries rests his case: though the Supreme Court found that

147 Id. 148 Althaus ex rel. Althaus v. Cohen, 756 A.2d 1166, 1169 (Pa. 2000) (“The determination of whether a duty exists in a particular case involves the weighing of several discrete factors which include: (1) the relationship between the parties; (2) the social utility of the actor’s conduct; (3) the nature of the risk imposed and foreseeability of the harm incurred; (4) the consequences of imposing a duty upon the actor; and (5) the overall public interest in the proposed solution.”). 149 Feleccia, 215 A.3d at 12–13. 150 Id. at 13. 151 Id. at 13–14. the Superior Court erred in relying on Kleinknecht, it didn’t decide—one way or the other—whether there was a new, duty-creating special relationship between a

college and its athletes; and, in Humphries’ view, this means that the Pennsylvania Supreme Court left the Third Circuit’s Kleinknecht prediction undisturbed.152 But Humphries’ view glances over essential elements of Feleccia and a key

federal courts doctrine. It is elementary that “federal courts sitting in diversity cases are required to apply the substantive law of the state whose laws govern the action.”153 A “state’s highest court is the best authority on its own law.”154 And when the “the highest state court has recently spoken to the precise question at issue

in a particular setting, the duty of the federal . . . is easily met”: apply the state law.155 If, however, “the highest state court has not yet authoritatively addressed the critical issue. . . . [,] such cases must be governed by a prediction of how the state’s highest court would decide were it confronted with the problem.”156 Either way,

blind adherence to an earlier Circuit Court prediction is unwarranted—and unfaithful to a federal court’s task when it is “in effect, sitting as a state court”157—if the court

152 Doc. 72-1 at 25–27. 153 Robertson v. Allied Signal, Inc., 914 F.2d 360, 378 (3d Cir. 1990) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938)). 154 Comm’n v. Est. of Bosch, 387 U.S. 456, 465 (1967). 155 McKenna v. Ortho Pharm. Corp., 622 F.2d 657, 661 (3d Cir. 1980). 156 Id. 157 Est. of Bosch, 387 U.S. at 465. is “applying state law and there is persuasive evidence that it has undergone a change . . . .”158

That the Pennsylvania Supreme Court’s decided not to create a new duty in Feleccia is, by itself, persuasive enough evidence that the Pennsylvania Supreme Court would not adopt Kleinknecht’s special relationship theory if this case were before it. It had the opportunity; it didn’t take it.159 But it’s not necessary to decipher

what the Pennsylvania Supreme Court’s decision not to dive into the special relationship waters means—and, in fact, doing so obscures the broader problem with Humphries’ assertion that I ought to follow Third Circuit precedent.160 In Feleccia,

the Pennsylvania Supreme Court held that to create a new duty, courts applying Pennsylvania law must employ the Althaus factors; when the Superior Court failed to do so, it was a clear error.161 Kleinknecht did not apply the Althaus factors—it

predated this change in approach. And on that basis alone, it is no longer good law. But even if Kleinknecht did provide the basis for my decision, Humphries claim would fail because his third contention falters: he and the Penn State Defendants did not have the same duty-creating special relationship as the parties in

Kleinknecht. The Third Circuit expressly noted that it’s holding was “narrow” and

158 Roamingwood Sewer & Water Ass’n v. Nat’l Diversified Sales, Inc., 509 F. Supp. 3d 198, 209 (M.D. Pa. 2020) (J. Wilson) (quoting Robinson v. Jiffy Exec. Limousine Co., 4 F.3d 237, 240 (3d Cir. 1993)) 159 Feleccia, 215 A.3d at 13–14. 160 Doc. 72-1 at 25–27. 161 Feleccia, 215 A.3d at 12–13. “predict[ed] only that a court applying Pennsylvania law would conclude that the College had a duty to provide prompt and adequate emergency medical services to .

. . its intercollegiate athletes, while [they are] engaged in a school-sponsored athletic activity for which [they] had been recruited.”162 The duty that Humphries asks us to impose does not fit within this holding. It is of a different sort and different scope.

It’s one thing to require that schools provide adequate medical services to athletes during practices or competition; it’s quite another to require that schools guarantee those athletes’ safety once they have left the field. The former is targeted; the latter turns the school and coaches into all-purposes insurers of a particular set of

students.163 Contrary to Humphries’ contention, a close reading of Feleccia and Kleinknecht do not disturb my previous finding: “Pennsylvania law does not

recognize a special relationship between colleges and student-athletes that would impose a duty of care.”164 Following Kleinknecht would require that this Court greatly expand a now-inapplicable precedent. This Court cannot do so. Pennsylvania law has shifted: to create a new common law duty, courts must apply

the Althaus factors. And Humphries has not asked that I create a new duty under Althaus.

162 Kleinknecht, 989 F.2d at 1372. 163 See Bradshaw, 612 F.2d at 138 (3d Cir. 1979) (”[T]he modern American college is not an insurer of the safety of its students.”) 164 Humphries, 492 F. Supp. 3d at 407. b. Humphries’ Affirmative Conduct-Created Special Relationship Theory

Humphries’ second special relationship theory also centers on the student- athlete qualified medical personnel cases. But his second theory draws, not from Kleinknecht, but the alternative duty ground that the Pennsylvania Supreme Court relied on in Feleccia—that the college had created a special relationship, and thus undertaken a duty, through its affirmative conduct. Humphries argues that Lackawanna College’s special relationship-creating conduct parallels Penn State

and Franklin’s conduct here. Let’s return to Feleccia. In finding this alternative special relationship ground, the Pennsylvania Supreme Court applied legal principles from two

separate—but related—strands of its jurisprudence where a party’s affirmative conduct had created a duty.165 It first highlighted Dittman v. UPMC—from what I’ll call the risk-causing affirmative conduct strand.166 This 2018 case considered a claim by hospital employees stemming from a data breach that compromised 62,000

employees personal information, ultimately resulting in many of those employees having false tax returns filed on their behalf.167 The employees argued that the hospital owed them a duty to take reasonable care to protect their information from

165 Feleccia, 215 A.3d at 15. 166 Id. at 14. (“affirmative, risk causing conduct”). See generally Dittman v. UPMC, 196 A.3d 1036 (Pa. 2018). 167 Dittman, 196 A.3d at 1038–39. the criminal acts of a third party because providing that information to the hospital was a condition of their employment.168 To support this assertion, the employees

relied on Comment A of the Restatement (Second) of Torts § 302, which provides that “anyone who does an affirmative act is under a duty to others to exercise the care of a reasonable man to protect them against an unreasonable risk of harm to them arising out of the act.”169 The court agreed. While acknowledging that

generally there is not a duty to protect against third-party criminal conduct, it found that the hospital created a special relationship with its employees by requiring that they submit confidential information and that “the data breach was ‘within the scope

of the risk created’ by UPMC.”170 The second strand of jurisprudence that the Pennsylvania Supreme Court highlighted in finding a duty in Feleccia centers on the Restatement (Second) of Torts § 323 and Feld v. Meriam.171 Unlike the first strand, where the duty turned on

the affirmative conduct creating the risk, the second strand rests on what I’ll call reliance-inducing affirmative conduct. As I covered above, section 323 provides that a duty-creating special

relationship can be found if a person promises to take on a task that is “necessary

168 Id. at 1039. 169 Id. at 1045 (quoting Restatement (Second) of Torts § 302, cmt. a (1965)). 170 Id. at 1046–48; see Feleccia, 215 A.2d at 14 (explaining the Dittman holding). 171 Feleccia, 215 A.3d at 14–15. See supra Section III.A.2 (rejecting Humphries’ stand- alone argument that the University’s conduct policies and decision to place Parsons on probation created a duty under section 323). for the protection of the other’s person or things . . . .”172 But as I noted, the specificity of the promise limits the duty.173 In the Feleccia court’s assessment of

whether the college owed its athletes a duty to provide a licensed trainer, it highlighted the application of section 323 in Feld.174 There, after a husband and wife were victims of a carjacking and abduction in the apartment’s parking garage, the

court considered a negligence claim by the couple against their landlord.175 Ordinarily, the court noted, landlords do not owe a duty to protect their tenants from the criminal acts of third parties.176 But, in this case, a duty arose because “the landlord undertook to provide secured parking and failed to exercise reasonable care

in doing so, and the tenants, who had relied on those services were injured as a result.”177 With these two strands of caselaw in mind, the Pennsylvania Supreme Court

found that Lackawanna College owed its athletes a duty to provide licensed athletic trainers that could treat practice- and competition-related injuries based on its affirmative acts—which both created the risk and induced reliance.178 The college had historically provided licensed trainers; it had required that athletes sign an

172 Restatement (Second) of Torts § 323. 173 Jean, 2021 WL 1516467, at *7. “For example, a landlord’s offer to replace a broke lock constitutes a specific undertaking, but a general promise to provide security on the premises does not.” Id. 174 Feleccia, 215 A.3d at 14–15. 175 Feld, 485 A.2d at 746. 176 Id. at 746. 177 Feleccia, 215 A.3d at 15 (citing Feld, 485 A.2d at 746). 178 Id. at 16. agreement giving athletic trainers and other medical professionals permission to treat them; it had continued to hold out the unlicensed trainers (one of whom had given

the erroneous medical opinion at issue in the case) as qualified despite knowing that they had failed their exams; and it had allowed the trainer to advise the athlete- plaintiff that he was okay to return to the field and play.179 Through this conduct,

the court found, the college had “clearly created an expectation” that their athletes “receive treatment from a certified athletic trainer . . . .”180 But by instead providing two trainers that had failed their licensing exams, the college had fallen short of this expectation and created the risk of improper treatment that ultimately occurred.181

So are Humphries and the Feleccia plaintiff similarly situated? Humphries argues that he has supported his claim that the University Defendants undertook a duty through their affirmative conduct.182 He alleges that:

 Franklin promised that the team was a “family” and that he would “defend” team members “as though they were his sons”;183  That by accepting a scholarship and playing for the Nittany Lions, team members’ athletic, personal, and academic lives are “subject to the significant

control” of Penn State and Franklin;184 and

179 Id. at 15–16. 180 Id. at 16. 181 Id. at 8–9. 182 Doc. 72-1 at 28. 183 Id. at ¶¶ 71–72. 184 Id. at ¶¶ 73–76.  That the athlete-coach and athlete-Penn State relationship was one of “mutual dependence”—with the University and coaches reliant on players “to generate

economic and non-economic benefits” and the players reliant on the University and coaches for continuing access to education.185 In total, Humphries argues that the promises, his scholarship, and the parties’ mutual

dependence created a special relationship.186 But Penn State and Franklin’s affirmative conduct differs from the duty-creating conduct identified in Feleccia and other cases in the Pennsylvania Supreme Court’s affirmative duty canon. To begin with, Humphries does not allege any risk-creating affirmative

conduct by Penn State or Franklin. This separates his case from Dittman—where the hospital had required that its employees “provide sensitive personal information and then collected and stored that information on its computer systems . . . ”;187 and

from Feleccia—where the unlicensed trainer had given the athlete medical advice.188 While Humphries does slightly better on the reliance-inducing affirmative conduct front (in the limited sense that he actually alleges reliance-inducing conduct), these alleged promises—that Franklin and his staff would treat Humphries

like family and keep him safe—fatally lack specificity.189 When the Pennsylvania

185 Id. at ¶¶ 77–80. 186 Doc. 72-1 at 28. 187 See Dittman, 196 A.3d at 1047. 188 Feleccia, 215 A.3d at 15–16. 189 Doc. 58 Id. at ¶¶ 71–72; see Jean, 2021 WL 1516467, at *7 (highlighting the specificity requirement). Supreme Court has found a duty based on reliance inducing affirmative conduct, something concrete was promised. Take Feleccia: there, the college provided

unlicensed trainers despite holding out the trainers as licensed and requiring that athletes sign a medical treatment waiver that said that the trainers would be licensed.190 And, in Feld—where a couple was carjacked and abducted from their

apartment parking garage—the court extended a duty because the landlord had provided security guards to maintain the safety of the premises for a fee.191 Taken as a whole, Humphries has failed to allege risk-creating and reliance-inducing affirmative conduct comparable to Feleccia or its forebearers.

But, as I noted above, Humphries also alleges that the University Defendants exercised “control and influence” over athletes athletic, academic, and personal lives;192 and that the University and its coaches relied on players “to generate

economic and non-economic benefits” while the players relied on the University and coaches for access to education.193 Humphries uses the magic word “rely,” but these actions don’t fit neatly into the bucket of reliance-inducing affirmative conduct. (And even if they did, there’s no allegation that Humphries was harmed because he

relied on the University Defendants’ promise to continue providing access to education.)

190 Feleccia, 215 A.3d at 15–16. 191 Id. at 14-15 (citing Feld, 485 A.2d at 746). 192 Doc. 58 at ¶¶ 73–76. 193 Id. at ¶¶ 77–80. I read these allegations as suggesting that Penn State and Franklin had a custodial relationship with Humphries and that, as a result of this control, had created

a special relationship.194 But Humphries doesn’t argue that he falls within the Restatement of Torts (Second) § 314A(4), which provides that a person “who voluntarily takes the custody of another under circumstances such as to deprive the

other of his normal opportunities of protection is under a similar duty to the other.” Though if he had, it’s unlikely to have made a difference. In the four decades since Bradshaw v. Rawlings,195 which ushered out the in loco parentis standard on Pennsylvania’s college campuses, Pennsylvania courts have consistently held that

universities do not “‘control’ their students’ behavior . . . .”196 That Humphries was an athlete doesn’t tip the scales: other courts applying the Second Restatement have found that the athlete-college relationship does not make the athlete “a ward of the

university without any vestige of free will or independence.”197 All in all, Humphries’ allusions to Penn State and Franklin’s control fail to bolster his claim.

194 This seems to be suggested by Humphries citation to paragraphs 69-80 of his third amended complaint in his reply brief. Doc. 72-1 at 28. But it is only the Defendant’s briefing that makes the case that this is what Humphries is arguing. Doc. 63 at 14 (“The new wrinkle added by Humphries in the TAC—that the amount of control a university or coach exerts over scholarship student-athletes gives rise to a custodial duty to protect them from harm—does not alter that analysis.”). 195 612 F.2d 135 (3d Cir. 1979). 196 Millard, 611 A.2d at 721; see also Sullivan, 572 A.2d 1209; Est. of Fitzpatrick, 2008 WL 3843078. 197 Orr v. Bringham Young Univ., 960 F. Supp. 1522, 1528 (D. Utah 1994), aff’d, 108 F.3d 1388 (10th Cir. 1997). Humphries asks that I impose a far-reaching duty, while failing to offer affirmative conduct on par with Feleccia. As a result, this Court predicts that the

Pennsylvania Supreme Court would not extend its affirmative-conduct creating special relationship jurisprudence to find a duty based on the facts that Humphries has alleged.

4. Possessor of Land, Special Relationship Humphries’ fourth duty theory rests on another special relationship; this time, the business-invitee relationship.198 Drawn from section 314A and 344 of the Restatement (Second) of Torts, this special relationship theory provides yet another

exception to the general rule that “there is no duty to control the acts of a third party.”199 The two restatement provisions work in tandem: “Section 314A clarifies that the business-invitee relationship is special and thus an exception to the general rule, while section 344 qualifies the exception’s scope.”200

But before Penn State can be found liable under section 344 for negligently failing to protect an invitee—as Humphries argues—two section 314 predicates must be met.201 “First the possessor of the land must hold his land ‘open to the public.’

And second, the possessor must hold his land open ‘for business purposes.’”202

198 Doc. 58 at ¶¶ 282 & 285. 199 Jean, 2021 WL 1516467, at *5. 200 Id. at *6. 201 Id. See Doc. 58 ¶¶ 282 & 285. 202 Jean, 2021 WL 1516467, at *6. The Pennsylvania Supreme Court discussed the rationale behind these section 344 liability predicates in Feld, the apartment garage carjacking case covered

earlier.203 There, the court explained why open invites warrant wider liability: “[P]laces to which the general public are invited . . . are also places where what men can do, they might.”204 And “one who profits from the very public [he] invites must bear what losses that public may create.”205 The corollary: if the invitation is not

open, the corresponding burden is unwarranted. That turned out to be the case in Feld. In finding that the open-to-the-public and open-for-a-business-purpose predicates were not met, the court highlighted that

“[t]he common areas of [the] apartment complex [were] not open to the public, nor [were] the general public expected or invited to gather there for other purposes than to visit tenants”;206 quite simply, the “apartment building [was] not a place of public resort . . . .”207 As a result, business-invitee liability was unwarranted.208

Humphries does not address these predicates. Instead, his argument addresses only whether Penn State had “actual notice … that [he] was at risk of harm while in the locker room in the Lasch Building . . . .”209 In covering this ground, he compares

203 Feld, 485 A.2d at 745. 204 Id. 205 Id. 206 Id. 207 Id. 208 Id. 209 Doc. 72-1 at 31. his case to James v. Duquesne University—emphasizing that unlike Duquesne University in that case, which could not have foreseen that students would be shot

by a non-student, Penn State had notice because of his reports.210 But in charging ahead to Penn State’s notice and the foreseeability of the harm—components at the heart of the business-invitee analysis—Humphries glosses over an essential

distinction: the Duquesne University case stemmed from a campus shooting after a dance that was open to the public and where an admission fee was charged.211 In contrast, Humphries’ pleading does not show that his alleged hazing and harassment occurred in buildings open to the public for business purposes.212 He

makes no allegation about the Morgan Academic Center (the site of the water pail incident) or Beaver Hall Dormitory (where Yetur Gross-Matos’ unspecified conduct occurred).213 And his reference to the Lasch building simply parrots the language of

the cause of action, asserting that it was “open to the public for entry for its business purposes.”214 “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”215 And Humphries in no way backs his claim that Penn State has thrown open the doors of its football team’s building—

or, for that matter, its team locker room and showers—to all-comers. It is plainly

210 Doc. 72-1 at 30–31; see James, 936 F. Supp. 2d at 646. 211 James, 936 F. Supp. 2d at 622–23. 212 See Restatement (Second) of Torts § 344; Jean, 2021 WL 1516467, at *6. 213 See Doc. 58 at ¶¶ 161–163. 214 Id. at ¶ 17. 215 Iqbal, 556 U.S. at 678. “not a place of public resort.”216 For that reason, imposing a duty under sections 314A and 344 is unwarranted.

5. Negligence Per Se Finally, this Court considers Humphries’ negligence per se claim against Penn State. Under Pennsylvania law, the violation of a statute can satisfy the first two elements of a negligence claim: that the defendant owed and breached a duty.217

But to do so, the plaintiff must first meet four requirements: (1) The purpose of the statute must be . . . to protect the interest of a group of individuals as opposed to the public generally; (2) The statute . . . must clearly apply to the conduct of the defendant; (3) The defendant must violate the statute . . . ; and (4) The violation of the statute must be the proximate cause of the plaintiff’s injuries.218

Humphries rests his claim on the Piazza Antihazing Law, which makes it a Third Degree misdemeanor for an institution to “intentionally, knowingly, or recklessly promote[] or facilitate[]” hazing.219 The parties disagree about whether Humphries has pled facts that meet the third requirement, the violation of the statute. In the last motion to dismiss, I found that Humphries “had done enough” to proceed with his claim against Penn State for the ten-day period between the Piazza Law’s November 18, 2018 enactment and Humphries departure from the University

216 Feld, 485 A.2d at 745. 217 Schemberg v. Smicherko, 85 A.3d 1071, 1074 (Pa. Super. 2014). 218 Id. 219 18 Pa. C.S. § 2805. on November 28.220 But an “amended complaint supersedes the original and renders it of no legal effect.”221 So I consider anew Penn State’s motion to dismiss this

claim.222 For a University to be liable under the Antihazing Law, the plaintiff must first show an underlying violation of the statute.223 If that claim is established, then the

plaintiff must show that the institution played a part—specifically, that the University “promote[d] or facilitate[d]” the violation.224 This Court need not delve into whether Penn State promoted or facilitated hazing, because Humphries revised pleadings fail to allege an underlying hazing violation.225

220 Humphries, 492 F. Supp 3d at 404–05. 221 West Run Student Hous. Assocs., 712 F.3d 165, 171 (3d Cir. 2013). 222 See id. 223 18 Pa. C.S. § 2805. 224 Id. 225 Though I’d be remiss to say that Humphries hasn’t wandered into danger on this front as well. In a recent decision, this Court delved in the Piazza Law’s promotes or facilitates requirement. See Jean v. Bucknell University, 2021 WL 4145055 (M.D. Pa. Sept. 9, 2021). There, I rejected an argument that I ought to apply the expansive plain meaning of the word “facilitate”—which is, “to make easier”. Id. at *7–8. But in rejecting that plain-meaning definition, I was careful to note that although facilitation generally required some sort of affirmative conduct by an institution or organization, in some instances—like those alleged by Humphries in his previous complaint—a University could “intentional, knowingly, or recklessly” facilitate hazing if it “ignored the plaintiff’s reports of hazing in a way that resulted in future hazing.” Id. at *8. While in his previous complaint Humphries alleged that the University took “no substantive action” in response to his reports, Humphries, 492 F. Supp. 3d at 401 (citing Doc. 40 at ¶¶ 105-106), in his third amended complaint he now argues that Penn State “stood idle taking no effective action” and details the University’s decision to place Micah Parsons on probation in the aftermath of the March fight. Doc. 72- 1 at 2 (emphasis added); Doc. 58 at ¶¶ 179(2)-193(2). These new assertions undercut his argument that, through its inaction, Penn State facilitated hazing. The bounds of this underlying hazing violation are marked by Section 2802, which includes in its pertinent part:

A person commits the offense of hazing if the person intentionally, knowingly or recklessly, for the purpose of initiating, admitting or affiliating a minor or student into or with an organization, or for the purpose of continuing or enhancing a minor or student's membership or status in an organization, causes, coerces or forces a minor or student to . . . . [e]ndure brutality of a physical nature, . . . . mental nature, . . . . [or] sexual nature . . . .226

In effect, there are two requirements to a predicate section 2802 claim: plaintiffs must show both hazing conduct (the brutality) and a hazing purpose (initiation, admission, affiliation, continuance, or enhancement). Humphries has adequately alleged that he was forced to endure physical, mental, and sexual brutality—meeting the conduct requirement.227 Penn State, however, argues that Humphries has failed to show that the purpose of his abuse was initiation—the hazing purpose that he has pled.228 By its very terms, the hazing statute does not extend to every act of abuse or violence at a college; enduring abuse while a student, or even while a member of a

226 18 Pa. C.S. § 2802. 227 Doc. 58 at ¶¶ 144–159. 228 In each of his four complaints, Humphries has alleged that the harassment he endured was a part of his “initiation”. Complaint Doc. 1 at ¶ 77 (Complaint); Doc. 22. at ¶ 77 (First Amended Complaint); Doc. 40 at ¶ 83 (Second Amended Complaint); Doc. 58 at ¶ 58 (Third Amended Complaint). While he correctly notes that the Piazza Law is not limited solely to initiation and argues that he can show that hazing was part of continuing or enhancing Humphries’ status on the team, he cannot modify his pleading and assert a new theory in his reply brief. team—however heinous—does not suffice.229 To come within the Antihazing Law, Humphries must show that these four players’ abuse was “for the purpose of

initiating” him onto the team.230 But Humphries’ pleadings do not show that the abuse he suffered was a requirement to be on the team. In fact, his complaint makes the case for its own

dismissal. To begin with, Humphries alleges that he was retaliated against by the four players, “in a concerted effort to ostracize and isolate [him] from . . . the football team.”231 In the next paragraph, he doubles down on this allegation, arguing that beyond isolating him, the players tried “to create a hostile environment intended to

encourage [him] to voluntarily withdraw from Pennsylvania State University and resign himself from its football program.”232 Far from showing that the players intended to initiate him, Humphries complaint shows that these players intended to

drive him from the team. If this fatal admission wasn’t enough, Humphries also fails to explain how he was initiated by two athletes who enrolled at the same time as him, and two others who were just a semester ahead. This Court does not adopt a rule that a person

cannot be initiated by a younger or less experienced person; they too can be hazers. Still, the plaintiff must allege that the party polices—formally, or not—the

229 See 18 Pa. C.S. § 2802. 230 Id. 231 Doc. 58 at ¶ 194. 232 Id. at ¶ 195. organization’s membership. In his previous complaint, Humphries alleged that he “viewed [Barber, Parsons, and Luketa] as upper classmen or in leadership positions”

and that “Parsons was a member of the Penn State football team’s leadership council.”233 Those references vanished in his latest complaint—with nothing alleging a similar sort of power structure in their place. Perhaps recognizing his

error, Humphries raises for the first time in his reply brief that the hazing “established a hierarchy of status . . . .”234 But a reply brief is no place to amend a complaint. And, finally, Humphries fails to show how his ongoing abuse constituted

initiation during the ten-day period in which he can plead a claim under the Antihazing Law. Even if this Court accept his pleading that the host of abuses he suffered happened two- to three-times a week throughout his stint—the latest of the

three incidents that he identifies with any specificity occurred in June—he does not support his claim that in his tenth month on the squad, this abuse was intended to initiate him. A host of criminal and civil laws proscribe the abuse that Humphries suffered

at Penn State; but the Piazza Antihazing Law proscribes this behavior only when it is done “for the purpose of initiating, admitting, or affiliating.”235 Humphries’

233 Doc. 40 at ¶¶ 80 & 81. The previous complaint did not include Yetur Gross-Matos in this paragraph’s hazing allegation. 234 Doc. 72-1 at 19. 235 18 Pa. C.S. § 2802. allegations fail to show a hazing purpose, and on this basis alone his claim against Penn State fails.

* * * None of Humphries five theories show that Penn State or Franklin owed a

duty to protect him. As a result, Count II (negligence per se against Penn State), Count IV (negligence against Penn State), and Count V (negligence against Franklin) are dismissed with prejudice.

B. Humphries’ Negligent Infliction of Emotional Distress Claim Fails Next, I consider Count VIII and whether Humphries has stated a claim for negligent infliction of emotional distress (NIED) against Penn State and Franklin.236 The Pennsylvania law that underlies this claim is unsettled.237 What’s clear: to

succeed on this claim, Humphries “must establish a prima facie case of negligence.”238 He has not done so here. But even if he had a bona fide negligence claim, his claim would still flounder under a generous reading of the unsettled NIED

case law.

236 Humphries pleads this claim against all Defendants; but, here, I consider only whether this claim has been adequately pled against Penn State and Franklin. 237 See Toney v. Chester Cnty. Hosp., 36 A.3d 83 (Pa. 2011). 238 Humphries, 492 F. Supp. 3d at 409. 1. Toney is persuasive authority In Pennsylvania, the tort of negligent infliction of emotional distress has

evolved over the last half-century.239 But this evolution has been limited—owing to courts’ historical aversion to compensating plaintiffs for emotional harm. Like many other state supreme courts, the Pennsylvania Supreme Court has expressed concern

that a broad right to recover for negligently inflicted emotional harm would result in a “flood of litigation” where it would be difficult is to ferret out fraudulent or frivolous claims from genuine ones.240 And their concern didn’t stop there: even when faced with genuine claims, they asked, how would courts be able to give the

claim the proper price tag?241 Thus, while the theory behind the cause of action is to allow plaintiffs to recover for foreseeable emotional harms caused by a defendant’s negligence, in reality, the right to recover has been limited to a few narrow categories.242

The parties agree on three of those categories. That is, plaintiffs can recover damages for negligently caused emotional distress (1) when “the plaintiff suffers a physical injury which causes the emotional distress”;243 (2) when the plaintiff was in

the “zone of danger”—or, in other words, experienced a “near-miss” and suffered

239 Toney, 36 A.3d at 88–89. 240 Id. at 88. 241 Id. at 88. 242 See id. at 88–89. 243 Hershman v. Muhlenberg Coll., 17 F. Supp. 3d 454, 459 (E.D. Pa. 2014) (citing Kazatsky v. King David Mem’l Park Inc., 527 A.2d 988, 992 (Pa. 1987)). emotional distress from having been endangered, despite not having suffered physical harm;244 and (3) when the “plaintiff witnesses an accident causing serious

injury to a close family member.”245 The parties disagree, however, as to whether there is a fourth category—and for good reason. Humphries argues that in Toney v. Chester County Hospital, the Pennsylvania

Supreme Court recognized a new NIED category that would allow plaintiffs to recover for negligently inflicted emotional harms “where a special relationship existed and where it was foreseeable [that there was] a potential for deep emotional harm to result in the event of a breach . . . .”246 The University Defendants’ response:

it did not.247 And the Defendants get it right—for the most part. Penn State and Franklin correctly point out that “the Toney Court was evenly divided” and “the opinion was in support of affirmance, and not the Opinion of the Court.”248 They are also correct that “[f]or that reason, the Toney decision . . . ‘lacks

precedential value.’”249 But the non-precedential nature of the Toney affirmance does not necessarily mean, as they say, that “Pennsylvania law limits NIED claims to three situations.”250 Rather, Toney remains a persuasive authority on whether I

244 Id. (citing Niederman v. Brodsky, 261 A.2d 84 (Pa. 1970)). 245 Id. (citing Sinn v. Burd, 404 A.2d 672 (1979). 246 Doc. 72-1 at 39. 247 Doc. 73 at 18. 248 Id. (quoting MDB v. Punxsutawney Christian Sch., 386 F. Supp. 3d 565, 593 (W.D. Pa. 2019)) (internal quotations omitted). 249 Id. (quoting MDB, 386 F. Supp. at 593). 250 Id. at 17 (emphasis added). would predict that the Pennsylvania Supreme Court would recognize a special relationship NIED claim in the future.251 Indeed, “[i]t is a close question whether

the Pennsylvania Supreme Court will ever rule that a claim for NIED may be based on a breach of a special relationship . . . .”252 Thankfully, guessing at how a court that divided evenly on the question previously would answer that question moving

forward is not required: as Penn State and Franklin put it, “Humphries fails to invoke Toney—even on Toney’s own terms . . . .”253 2. The special relationship that Humphries alleges would not be recognized if Toney were controlling

I need not predict how the Pennsylvania Supreme Court would decide that close question because, in Toney, the justices writing to affirm the lower court’s special relationship theory made plain that if the court did recognize the claim, not every special relationship accepted in a negligence claim would meet its NIED standard.254 And if Humphries’ purported special relationship were cognizable, it would not meet this heightened NIED standard.

Humphries argues that he has established that he had a special relationship with Penn State and Franklin that would give rise to NIED liability.255 He points first to his status as a recruited athlete, which he argues creates a special relationship

251 MDB, 386 F. Supp. at 593 252 Hershman, 17 F. Supp. 3d at 460. 253 Doc. 73 at 18. 254 See Toney, 36 A.3d at 95. 255 Doc. 72-1 at 38–39. under Kleinknecht.256 And he also references the Defendants’ duty-creating affirmative conduct, which he posits establishes a special relationship under

Feleccia.257 Earlier, in assessing Humphries’ negligence claim, I rejected both theories. But even if they had merit, those special relationship wouldn’t be controlling here. Humphries confuses the law on this point. There’s a distinction

between duty-creating special relationships under negligence law and special relationships in an NIED claim.258 The standard for the latter is far more stringent. In Toney, the affirming justices carefully limited the prospective NIED claim’s reach. To qualify, they

wrote, “special relationships must encompass an implied duty to care for the plaintiff’s emotion well-being.”259 They also added that no implied duty arises if the relationship does not “obviously and objectively hold the potential for deep emotional harm in the event of breach.”260

So what sort of special relationships hold the seeds of this sort of harm? In Toney, the court declined to create an exhaustive list. But its survey of existing caselaw suggests that there are few.261

256 Id. 257 Id. at 39. 258 See Toney, 36 A.3d at 90–95. 259 Id. 260 Id. 261 See id. at 92–95. The quintessential example is the botched burial.262 Courts far and wide have recognized that “the relationship between the loved ones of the deceased and those

responsible for caring for the corpse” contains obvious and objective potential for harm.263 Besides matters of death, Toney also recognized this potential in matters of life—specifically, those involving the birth of a child.264 But even there, caution is

warranted. That was the issue considered in Toney—and the Pennsylvania Supreme Court only had enough votes to affirm the Superior Court’s finding that the obstetrician-expectant mother relationship “implied [a] duty to care for the plaintiff’s emotional well-being.”265

Given the narrow scope of this not-quite recognized NIED liability ground, it should come as no surprise that courts in this state have found that “the relationship between a college and its students does not hold the potential of deep emotional harm.”266 That Humphries played a sport for his college does not alter the calculus.

Whether through a benching or a tragic loss, heartache is certain to accompany college sports, but it poses no greater obvious and objective “potential for deep

262 See id. at 92–94. 263 Id. at 92. 264 Id. at 93–94. See also Madison v. Bethanna, 2012 WL 1867459 (E.D. Pa. May 23, 2012) (refusing to dismiss an NIED claim alleging a special relationship between adoptive parents and an adoption agency). 265 Toney, 36 A.3d at 95. 266 Hershman, 17 F. Supp. 3d at 460. See also Kling v. Pittsburgh Med. Ctr., 2020 WL 2832008, at *4 (W.D. Pa. May 8, 2020) (finding that the college-student relationship does not support an NIED claim); Walsh v. Univ. of Pittsburgh, 2015 WL 128104, at *15-16 (W.D. Pa. Jan. 8, 2015) (same). emotional harm” to a student than the ordinary college experience. That is not to say that deep emotional harms do not afflict college students or athletes—it’s simply

that having experienced deep emotional harm is not the standard.267 In marking the bounds of NIED law, the Pennsylvania Supreme Court wanted to make sure that the harm they were compensating was genuine; and limiting the

extension of compensation to a narrow group of relationships that “obviously and objectively hold the potential for deep emotional harm” was their solution.268 The relationship between a university and its students does not qualify, neither does the relationship between athletes and their universities, nor the relationship between

athletes and their coaches.269 So even if the athlete-coach or athlete-university relationship met the special relationship standard under Pennsylvania negligence law, those relationships would still not support an NIED claim.270

The flaws in Humphries’ NIED claim against Penn State and Franklin are numerous—and fatal: he lacks a predicate negligence claim; the case on which he rests his theory of recovery is merely persuasive authority; and even if that case were binding, his theory of a special relationship—which I rejected already—is not the

267 See Toney, 36 A.3d at 94 (quoting Larsen v. Banner Health Sys., 81 P.3d 196, 200) (positively referencing a Wyoming court decision highlighting that not even every medical relationship holds deep potential for emotional harm because “[a]lthough some level of emotion attends every situation involving one’s health, we do not anticipate that every area of healthcare will carry the deploy emotional responses sufficient to sustain this exception.”) 268 See id. at 90–95. 269 Id. at 95. See also Hershman, 17 F. Supp. 3d at 460. 270 Toney, 36 A.3d at 95. sort that would give rise to liability anyway. Accordingly, Count VIII, as it pertains to Penn State and Franklin, is dismissed with prejudice.

C. Humphries Fails to State a Claim Under Title IX Finally, I consider Count I, Humphries’ federal law claim against Penn State for violating Title IX of the Education Amendments of 1972. In resolving the motion

to dismiss Humphries’ previous complaint, I found that Humphries had not alleged facts sufficient to support a Title IX harassment claim or retaliation claim. I ruled that Humphries had not established that he was harassed because of sex, which doomed his first theory; and that Humphries had not alleged that Penn State

retaliated against him for reporting any sex discrimination, which doomed his second. Humphries sticks to these theories in his latest complaint; but his revised

pleadings glance over my red ink and fail to cure the defects I identified in his previous complaint. Thus, his claim is dismissed yet again, but this time with prejudice. 1. Humphries was not harassed because of his sex

Title IX states in part that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”271 The Supreme Court has recognized that Title IX permits hostile educational environment claims based on student-on-student harassment.272

To succeed under this theory, a plaintiff must show that: (1) the defendant received federal funds; (2) sexual harassment occurred; (3) the harassment took place under circumstances wherein the funding recipient exercised substantial control over both the harasser and the context in which the harassment occurred; (4) the funding recipient had actual knowledge of the harassment; (5) the funding recipient was deliberately indifferent to the harassment; and (6) the harassment was so severe, pervasive, and objectively offensive that it could be said to have deprived the victims of access to the educational opportunities or benefits provided by the school.273

In a student-on-student sexual harassment case, plaintiffs have at least three avenues. They can show that “the harasser was motivated by sexual desire, [that] the harasser was expressing a general hostility to the presence of one sex in the workplace, or [that] the harasser was acting to punish the victim's noncompliance with gender stereotypes.”274 It is that last theory that Humphries attempts and fails to plead here. Humphries’ doesn’t clearly assert his gender stereotype claim, but it’s arguably premised on at least two different theories. First, he claims that he was harassed as some type of initiation into the Penn State football team. Alternatively, he suggests that he was harassed because he “presented as elegant, dignified, and

271 20 U.S.C. § 1681 (a). 272 Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 643 & 650 (1999). 273 Dawn L. v. Greater Johnstown Sch. Dist., 586 F. Supp. 2d 332 (W.D. Pa. 2008) (citing Davis, 526 U.S. at 650-52 (1999)). 274 Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257, 264 (3d Cir. 2000). [was] perceived of [as being from a] high social class.”275 But Humphries fails to explain how this initiation theory equates to discrimination because of sex, and he

never clarifies how elegance, dignity, or social standing is particularly feminine, or unmasculine. Harassment as a form of initiation into an organization is otherwise known as

hazing, a claim that I addressed earlier. But that rationale—initiation—has nothing to do with sex. As I explained in my previous memorandum opinion, Humphries cannot sustain a Title IX claim on that theory.276 In his briefing, Humphries focuses on his second theory: that he was harassed

by his teammates because he “failed to live up to the expectations of stereotypical toughness and masculinity expected of a collegiate football player.”277 That conclusion is distinct from a claim that Humphries was harassed because he failed

to live up to his teammates’ expectations of the stereotypical toughness and masculinity expected of a man. His claims fail because none of the harassment- causing traits that he identifies are unmasculine or effeminate. Being elegant is not inherently or especially feminine. Being dignified is not found more often in men

or women. And being high-class has little—if anything—to do with one’s sex.

275 Doc. 72-1 at 4. 276 Humphries, 492 F. Supp. At 402–03. 277 Doc. 58 at ¶ 139 (emphasis added). The cases Humphries cites for support are easily distinguishable. In one, Doe v. Southeastern Green School District, a twelve-year-old boy was outed as being gay

and bullied by students who targeted him because of his sexuality.278 The court in that case noted the plaintiff’s theory was that he “did not conform to the gender stereotype of a middle school male.”279 Failing to conform to the stereotype of a sex

(male) is different from failing to conform to the stereotypes expected in a particular activity (football). Another case Humphries relies on, Doe by Doe v. City of Belleville, Illinois, is distinct because once again, the plaintiff in that action was targeted because of

something perceived to be feminine.280 Putting aside the fact that the decision was vacated, it simply does not help Humphries state his claim. In that case, one of the plaintiffs was harassed by his coworkers. The court noted that the record suggested

that this plaintiff was harassed “in whole or in part because he wore an earring, a fact that evidently suggested to his co-workers that he was a ‘girl’ or, in their more vulgar view, a ‘bitch.’”281 Wearing earrings may have been (and may very well still be) considered effeminate, such that it could support the causal finding for a sexual

harassment claim. But that is, again, different in kind from elegance or dignity or

278 2006 WL 8458032 (W.D. Pa. Mar. 24, 2006). 279 Id. at *6. 280 119 F.3d 563 (7th Cir. 1997). 281 Id. social class or the diction with which one speaks. None of those traits are inherently masculine.

Humphries’ claim fails not because the allegations he makes could never support a claim for sexual harassment, but because he never ties his abuse and harassment to a gender stereotype. His initiation theory does not support a finding

that he was harassed because of sex. And his theory that he “failed to live up to the expectations of stereotypical toughness and masculinity expected of a collegiate football player” all but dooms his claim.282 If Humphries had alleged that he failed to live up to the expectations of

stereotypical toughness and masculinity expected of an eighteen- to twenty-two- year-old male, he may well have survived the motion to dismiss. But Humphries willingly took his claim out of the sphere of sex and into the sphere of an activity.

Humphries tries to bring his claim back under the umbrella of sex in his brief by alleging that Penn State “expected the plaintiff to toughen up, stop acting like a ‘girl’, stand up and fist-fight to defend himself, and not run to authority.”283 But as the University Defendants correctly note, none of the words “girl,” “feminine,” or

“woman” are even in his latest complaint; nor does anything else in it support that claim. As I noted above, a reply brief is no place to amend a complaint’s factual deficiencies.

282 Doc. 58 at ¶ 139 (emphasis added). 283 Doc. 72-1 at 8. As the United States Court of Appeals for the Sixth Circuit recently noted while affirming the dismissal of a Title IX claim, toughness is not a gendered trait:

[W]hile sometimes celebrated in men, [toughness] is certainly not discouraged in women, especially in a professional or team setting. Indeed, in sports, law enforcement, business, law, politics, the armed services, and myriad other activities and professions, women are called upon to be as tough as men. And in many instances, women outpace their male colleagues in that respect.284

Although the Sixth Circuit recognized that the insults hurled by the football coach in that case had sexual connotations and were arguably an attack on the plaintiff’s masculinity, it recognized that the coach’s comments “targeted a fundamental requirement for football players—toughness.”285 That is exactly what Humphries claims caused his teammates to harass him. Humphries pled himself out of a Title IX claim by narrowing his pool to collegiate football players.286 2. Humphries was not retaliated against for reporting any alleged harassment

Humphries’ retaliation claim against Penn State is even less-clearly pled. But the crux of his claim is that Franklin and other coaches retaliated against him for reporting the alleged harassment. To state a claim for retaliation under Title IX, a plaintiff must allege: “(1) that he or she engaged in protected activity; (2) [the]

284 Chisholm v. St. Mary’s City Sch. Dist. Bd. of Ed., 947 F.3d 342, 352 (6th Cir. 2020). 285 Id. 286 Although Penn State identified its argument plainly in its opening brief, Humphries made no attempt to address the issues raised or the cases highlighted. defendant had knowledge of the protected activity; (3) adverse school-related action was taken against plaintiff; and (4) a causal connection between the protected

activity and the adverse action.”287 At the outset, Humphries fails to address the necessary elements of a Title IX claim. Instead, Humphries tries to conflate the elements of a Title IX harassment claim with those of a Title IX retaliation claim.288

That decision foreshadows the result. Humphries claims that because he reported harassment, he was retaliated against by his coaches. The allegations plausibly pled are that the coaches: (1) “overly and unfairly scrutinized” his athletic performance; (2) “scorned” him;289 (3)

required him to participate in drills designed to ensure his failure; (4) subjected him to “irrational and inappropriate censure”;290 (5) denied him necessary medical accommodations; (6) tried to push him into medical retirement; and (7) spoke poorly of him to other football coaches after he decided to transfer.291

Humphries fails to engage, even on a surface level, with causation. He does not plainly state whether he is alleging direct or indirect evidence of causation— making that determination far harder than it needed to be. It appears that Humphries’

287 S.K. v. North Allegheny Sch. Dist., 168 F. Supp. 3d 786, 803-04 (W.D. Pa. 2016) (citing Yan v. Pennsylvania State Univ., 529 Fed. App’x 167, 171 (3d Cir. 2013)). 288 Specifically, Humphries attempts to shoehorn his entire retaliation claim into the “deliberate indifference” element of the Title IX harassment claim, without any explanation whatsoever. 289 It is impossible to deduce what scorning someone looks like in this context. 290 The meaning of censure in this context also escapes the Court. 291 Doc. 58 at ¶ 187. claim more readily relies on indirect evidence. “A Title IX plaintiff may demonstrate causation in three ways: (1) by way of temporal proximity between the

adverse action and the protected activity, (2) by showing a pattern of animus after the protected activity; or (3) by other circumstantial evidence concerning the school’s motivation, including inconsistent reasons given by the school or its treatment of others.”292

Once again, despite being directed to do so, Humphries chose not to detail the timeline of events. He provides only three specific dates on which he allegedly informed Penn State football coaches about some sort of harassment. But even then,

he never provides information about when the alleged retaliation began or how often it took place. So he cannot show any temporal proximity that would show causation. Likewise, his imprecise pleading prevents him from establishing a pattern of animus

after the protected activity. And Humphries fails to point to any other circumstantial evidence about the school’s motivation for this alleged retaliation. Instead, the only time he provides any details, he undermines his own claim. For example, Humphries alleges that he got into a fight with Micah Parsons after

Parsons doused him with a pail of water; things escalated from there and ended with Humphries brandishing a knife to fend Parsons off.293 Humphries reported the

292 Doe v. Manor Coll., 479 F. Supp. 3d 151, 172 (E.D. Pa. 2020) (citing Atkinson v. Lafayette Coll., 653 F. Supp. 2d 581 (E.D. Pa. 2009)) (internal quotation marks omitted). 293 Doc. 58 at ¶¶ 179(2)–183(2). incident to the coaching staff and two days later Franklin gave him extra workouts as punishment for pulling a knife on a teammate rather than fight without a

weapon.294 Humphries claims this is retaliatory behavior.295 Even if this behavior were retaliatory, Humphries himself tells the Court that this alleged retaliation had nothing to do with any protected activity under Title IX.

Instead, in both his complaint and briefing, Humphries claims that “Franklin retaliated against [him] for defending himself by brandishing a knife and not fist- fighting Micah Parsons man-to-man”—not for complaining about sexual harassment.296 Humphries’ latest complaint falls well short of plausibly pleading a

claim of retaliation, mainly because Humphries’ failure to adequately establish the series of events—again, despite this Court’s instruction. As a result, he has not alleged causation, even under the liberal pleading standards of the Federal Rules.

Thus, the University Defendants’ motion to dismiss Humphries’ Title IX claim is granted.

294 Id. at ¶¶ 185(2)–192. 295 Id. at ¶ 222(h). 296 Doc. 72-1 at 8 (emphasis added). See also Doc. 58 at ¶ 192 (“James Franklin imposed punishment upon the plaintiff in the form of additional work-outs dubbed ‘dawn patrol’ as a result of the plaintiff having chosen to brandish a knife to ward off Micah Parsons rather than having chosen to fist-fight Micah Parsons.”). IV. CONCLUSION Humphries’ latest complaint must be his last complaint. He’s had four tries.

If he could have alleged facts to support his various claims, he would have done so by now. I therefore find that further amendment would be futile and that it would be improper to require Penn State and Franklin to defend against these claims yet

again. Penn State and Franklin’s motion to dismiss Count I, Count II, Count IV, Count V, and Count VIII with prejudice is granted. An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann Matthew W. Brann Chief United States District Judge