Rossi v. University of Utah

2021 UT 43IN THE
SUPREME COURT OF THE STATE OF UTAH
CHRISTINA ROSSI,
Appellant,
v.
UNIVERSITY OF UTAH,
Appellee.
No. 20180549
Heard November 17, 2020
Filed August 12, 2021
On Direct Appeal
Third District, Salt Lake
The Honorable Royal I. Hansen
No. 160905414
Attorneys:
Ryan B. Hancey, Adam L. Grundvig, Salt Lake City, for appellant
Peggy E. Stone, Asst. Solic. Gen., Sean D. Reyes, Att’y Gen.,
Salt Lake City, for appellee
ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court
in which CHIEF JUSTICE DURRANT, JUSTICE HIMONAS,
JUSTICE PETERSEN, and JUDGE WILCOX joined.
Having recused himself, JUSTICE PEARCE does not participate
herein; JUDGE JEFFREY C. WILCOX sat.
ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:
INTRODUCTION
¶1 Christina Rossi was dismissed from the University of
Utah’s Neuroscience Ph.D. Program (the University). She asserted
claims against the University for breach of contract, breach of the
covenant of good faith and fair dealing, and negligence. The
district court dismissed all three claims on summary judgment.
We affirm.
ROSSI v. UNIVERSITY OF UTAH
Opinion of the Court
¶2 We acknowledge that a student may establish that a
university has made promises to students that are legally
enforceable under the law of contracts. But we hold that Rossi
failed to establish a basis for concluding that there was a breach of
any such promise by the University of Utah—a promise made in
exchange for a promise or performance by Rossi.
¶3 We affirm the dismissal of Rossi’s breach of contract
claims on this basis. Because her contract claims fail, we also hold
that she has no viable claim for breach of the covenant of good
faith and fair dealing. And we reject her negligence claim on the
basis of our refusal to establish a fiduciary duty of educators to
students.
BACKGROUND
¶4 In 2008 the University of Utah accepted Christina Rossi as
a Ph.D. student in its Interdepartmental Program in Neuroscience.
Upon accepting her, the university sent Rossi an acceptance
packet that included a program Policy Statement and an
Academic Policies and Procedures Guide—documents that
described academic standards for students in the program and set
forth procedures for addressing a student’s failure to meet such
standards.
¶5 In Rossi’s first year in the program she enrolled in
required courses and began to conduct research under the
supervision of an assigned mentor. Initially, Rossi’s research was
performed under the supervision of Dr. Raymond Kesner. Rossi
and Kesner signed a document—an Association of Medical
Colleges (AAMC) “Compact Between Biomedical Graduate
Students and Their Advisors”—memorializing certain
expectations for their mentoring relationship. She also began to
form her dissertation supervisory committee (the Committee),
which included Dr. Kesner and Drs. F. Edward Dudek, Kristin
Keefe, John White, and Bradley Greger.
¶6 Dr. Dudek took over the role as Rossi’s mentor during her
second year. During that year, Dr. Dudek encouraged Rossi to
collect data for her project using a device called the “Epoch.”
Rossi was aware that Dr. Dudek had an ownership interest in the
company that manufactured the device, but claims she did not
know the extent of his interest.
¶7 In September 2012, Rossi met with the Committee to
discuss her progress. They selected June 2013 as the anticipated
date for Rossi to defend her dissertation.
2
Cite as: 2021 UT 43Opinion of the Court
¶8 According to Rossi, her relationship with the Committee
began to sour around November 2012. At that point, Rossi told
Dr. Dudek that her research had not produced the results she had
expected. At that time, Dr. Dudek sent a letter identifying the
possibility of conflicts of interest based on his ownership in the
manufacturer of the Epoch. He stated that the University did not
want Rossi to feel “pressured” to make the Epoch and the data
provided appear “better than they actually [were].” Dr. Dudek
identified several plans to manage the conflicts, but Rossi asserts
that no University representatives followed the plans in the letter.
¶9 Rossi alleges that Dr. Dudek did not make himself
available to discuss her dissertation after this point. In March
2013, however, Dr. Dudek approved an April 25 date for Rossi to
defend her dissertation. Dr. Dudek and Rossi met to discuss her
dissertation on April 15. At that time, Rossi believed that Dr.
Dudek was happy with her work. The next day, however, Dr.
Dudek encouraged Rossi to postpone both her defense date and
her upcoming postdoctoral fellowship at MIT. Three days before
her dissertation defense, Dr. Dudek met with Rossi and informed
her that he “did not trust her” because she had been “dishonest.”
He also told Rossi she could no longer be in his lab unless
escorted.
¶10 After Rossi’s defense, Dr. Dudek told the Committee,
people in his lab, University faculty, and the University’s research
integrity officer that he believed that Rossi had been dishonest,
misleading, untrustworthy, and lazy. He also asserted that she
had committed “research misconduct” and other misconduct,
including falsifying her data.
¶11 After Rossi’s defense, the Committee unanimously
determined that she did not fully analyze her data and that her
written dissertation lacked the level of completeness and detail
required for a Ph.D. The Committee gave Rossi a second chance to
defend her dissertation, however. At least one of the grounds for
doing so was Rossi’s assertion that Dr. Dudek had not been
available or given her adequate support in the months leading up
to her defense.
¶12 From April 2013 until January 2014, Rossi communicated
with the Committee, and the Committee members regularly
consulted each other as they reviewed Rossi’s work. They
provided feedback regarding proposed drafts and sections of her
dissertation and helped facilitate her research and data analysis.
3
ROSSI v. UNIVERSITY OF UTAH
Opinion of the Court
¶13 The Committee met in July 2013, but then did not hear
from Rossi again during the remainder of the summer. Dr. Keefe
requested an update of her progress in September. Rossi then
resumed submitting drafts of portions of her dissertation. But the
Committee unanimously found that her drafts were inadequate
and that she failed to incorporate the Committee members’
suggestions in subsequent drafts.
¶14 At a November 2013 Committee meeting, the Committee
determined that Rossi should be dismissed from the program and
informed her of that decision. But the Committee reconsidered
this decision the next day. It notified Rossi in writing that she was
not dismissed and would be allowed to continue her project. The
Committee sent her a Remediation Plan Letter, setting forth terms
and conditions for Rossi to defend her dissertation in August
2014. The Remediation Plan Letter said that the Committee would
reach out to Rossi by January 6, 2014 if she had “not made
sufficient progress toward the completion of [her] dissertation,”
and would ask her “whether [she] wish[ed] to continue in the
Interdepartmental Program in Neuroscience.” If she did, the
program would then “provide [her] with the next defined steps
necessary to move, in their view, toward a successful dissertation
document and oral defense in July/August.”
¶15 Rossi responded by filing a grievance. Her grievance
challenged the proposed remediation plan and stated that she
wanted to graduate and defend her dissertation sooner. She also
demanded office space, specific and written feedback, access to
committee members, and for all committee meetings to be
recorded. Neither the Committee nor the University accepted any
of those requests. Yet Rossi alleges that she and the University
acted bound by the Remediation Plan Letter despite her
grievance.
¶16 Rossi did not meet the deadlines set out in the
Remediation Plan Letter. She repeatedly requested extensions of
time. In the Committee’s view, Rossi’s work did not improve. On
January 14, 2014, the Committee sent Rossi a letter informing her
she was dismissed from the program. The Committee’s decision
was affirmed at every level of administrative review at the
University, including appeals and review by the Program Chair,
the Dean of the School of Medicine, the Graduate School Vice
President, the Academic Appeal committee, and the University’s
Vice President.
4
Cite as: 2021 UT 43Opinion of the Court
¶17 Rossi asserted claims against the University for breach of
contract, breach of the covenant of good faith and fair dealing,
and negligence. Her breach of contract claims alleged that the
University had breached the terms of a contract established in
various documents memorializing her status or relationship in the
University or the program—a policy set forth in a University
Student Code, the terms of a Faculty Code and Conflict of Interest
Policy and Research Misconduct Policy, and the standards set
forth in the Program Policy Statement, AAMC Compact, and the
Remediation Plan Letter. Rossi also asserted that the University
had breached a covenant of good faith and fair dealing inherent in
these alleged contracts. And she claimed that the University had
an independent duty in tort that it breached in dismissing her
from the program.
¶18 The district court dismissed all of these claims on
summary judgment. In dismissing the contract claims, the court
noted that the Utah appellate courts had not yet decided whether
a contractual relationship exists between a university and its
students “based solely on a university’s policies and procedures,
rules, or student manual.” In the absence of Utah-specific
authority, the district court turned to precedent in other
jurisdictions. First, the court endorsed a statement from the Tenth
Circuit Court of Appeals suggesting that contract law may not be
“rigidly applied in all its aspects” in a university setting. See
Slaughter v. Brigham Young Univ., 514 F.2d 622, 626 (10th Cir.
1975). Second, the court found “persuasive a line of cases from the
Southern District of New York”—cases stating that “general
policy statements and broad and unspecified procedures and
guidelines” will not sustain a claim for breach of contract against
a university, see Ward v. New York Univ., No. 99 CIV. 8733 (RCC),
2000 WL 1448641, at *10 (S.D.N.Y. Sept. 28, 2000), and holding that
a plaintiff asserting a claim for breach of contract based on
university policies and procedures “must identify specifically
designated and discrete promises” in university materials, see
Nungesser v. Columbia Univ., 169 F. Supp. 3d 353, 370 (S.D.N.Y.
2016) (citation and internal quotation marks omitted).
¶19 The district court applied this standard in concluding that
each of Rossi’s breach of contract claims failed as a matter of law.
It also dismissed the good faith and fair dealing claim, holding
that Rossi could not “resort to the implied covenant as a means to
revive any of the remaining bases for her breach of contract
claim,” or to establish either “new, independent rights or duties”
that the parties had not agreed to, see Oakwood Vill. LLC v.
5
ROSSI v. UNIVERSITY OF UTAH
Opinion of the Court
Albertsons, Inc., 2004 UT 101, ¶ 45, 104 P.3d 1226, or “obligations
inconsistent with express contractual terms,” see Snow v. Chartway
Fed. Credit Union, 2013 UT App 175, ¶ 7, 306 P.3d 868 (citation
omitted). Finally, the district court dismissed the negligence claim
on the ground that a university has no tort-based duty to provide
an education in accordance with a professional standard of
instruction.
¶20 Rossi filed a motion to alter or amend the judgment. The
district court heard argument on that motion, but Rossi filed a
notice of appeal before the district court had ruled. The court of
appeals stayed the appeal pending a district court ruling on the
pending motion. The district court thereafter denied the motion
(in an order not challenged by Rossi).
¶21 Rossi’s appeal then resumed in the Utah Appellate Court.
In considering the resumption of the case, it was decided that the
case would be recalled by this Court.
STANDARD OF REVIEW
¶22 We review the district court’s decision on summary
judgment de novo, yielding no deference to its analysis. See Bahr v.
Imus, 2011 UT 19, ¶ 15, 250 P.3d 56. And we affirm the dismissal
of each of Rossi’s claims. In so doing we clarify the governing
standard for assessing a breach of contract claim in this setting,
and explain how that standard affects Rossi’s claims for breach of
the covenant of good faith and fair dealing and for breach of a
tort-based duty of care.
ANALYSIS
I. BREACH OF CONTRACT
¶23 We agree with a core premise of the district court’s
analysis of Rossi’s claims for breach of contract. Not every
assurance or statement made in a university setting can be taken
as a term of a contract enforceable under the law.
¶24 We disagree, however, with the need or basis for a
university-specific standard of contract law. The controlling
standards, in our view, do not stem from a requirement of
specificity or discreteness that is somehow unique to universities.
They flow from a general principle of contract law—the notion
that the operative terms of an enforceable contract are the terms of
a bargained-for exchange between the university and its students.
Such terms may be manifested by express language or by
implication from course of dealing or traditional practice. But the
6
Cite as: 2021 UT 43Opinion of the Court
key question is whether an alleged assurance by a university is
the articulation of a legally enforceable “promise” made in
exchange for a promise or performance by a student (such as
payment of tuition or other means of qualifying for enrollment).
¶25 In so concluding, we reject Rossi’s request that we
establish a blanket rule that treats the relationship between a
university and its students generally as a contractual one, defined
by the terms and conditions of all university policies and similar
documents. Admittedly, our opinion in University of Utah v.
Shurtleff, 2006 UT 51, 144 P.3d 1109, made reference to the
possibility of a “contractual or quasi-contractual relationship[]”
between a university and its “students and employees” arising
under a firearms policy. Id. ¶¶ 26, 28. But in so stating we were
not establishing that any particular terms of that policy were
enforceable in the law of contract—much less that all university
policies are contractual. We were simply holding that the firearms
policy in question was not a “legislative” enactment that ran afoul
of a state statute prohibiting a “local authority or state entity”
from adopting a policy restricting the “possession or use of
firearms on either public or private property.” Id. ¶ 11 (citing
UTAH CODE § 63-98-102(5) (2004) (current version at id. § 53-5a-
102(5)). And the Shurtleff case accordingly does not establish a
general rule that deems all formal university policies to form the
basis of a contractual relationship between a university and its
students.
¶26 We do not foreclose the possibility that a university policy
or other document may establish the basis of an enforceable
contract with students or others in the university community. In
fact, we expressly acknowledge that a university likely does have
a contractual relationship with its students to some degree. See
infra ¶ 38. Our holding is thus more limited. We simply reject the
notion of a blanket rule establishing that all formal university
documents are enforceable in contract. And we hold that the
question of the enforceability of any university document under
the law of contract depends on whether the terms of the
document can be shown to amount to a legally enforceable
promise made in exchange for a promise or performance by a
student.
¶27 As the plaintiff in this matter, Rossi bears the burden of
coming forward with evidence to support each of the elements of
her claims for breach of contract. We conclude that she has failed
to carry that burden. And on that basis we also reject her assertion
that the determination of the terms of any enforceable contract
7
ROSSI v. UNIVERSITY OF UTAH
Opinion of the Court
must turn on questions of fact that are not properly resolved on
summary judgment. This may sometimes be true. But the burden
of production on summary judgment follows the burden of proof.
See Salo v. Tyler, 2018 UT 7, ¶ 30, 417 P.3d 581. And Rossi
accordingly bears the burden of producing “a legally sufficient
evidentiary basis” on each “element” of her claims. See id. (citing
UTAH R. CIV. P. 50(a)(1)). We conclude that the University is
entitled to judgment as a matter of law because Rossi failed to
carry the burden of producing evidence sufficient to establish that
the University breached the terms of any legally enforceable
contract.
¶28 We develop the grounds for our breach of contract
framework in the paragraphs below. We then apply that
framework to each of Rossi’s claims for breach of contract.
A. Promises and Bargained-For Exchanges
¶29 “A contract is a promise or set of promises for the breach
of which the law gives a remedy, or the performance of which the
law in some way recognizes as a duty.” RESTATEMENT (SECOND) OF
CONTRACTS § 1 (AM. L. INST. 1981). A key element of a contract is
thus the existence of a legally enforceable “promise” or set of
promises. In contract law, a “promise is a manifestation of
intention to act or refrain from acting in a specified way, so made
as to justify a promisee in understanding that a commitment has
been made.” Id. § 2(1). “A promisor manifests an intention if he
believes or has reason to believe that the promisee will infer” the
promisor’s intention to act or refrain from acting based on the
promisor’s “words or conduct.” Id. § 2 cmt. b.
¶30 “A promise may be stated in words either oral or written,
or may be inferred wholly or partly from conduct.” Id. § 4. Thus,
an “intention to make a promise may be manifested in language
or by implication from other circumstances, including course of
dealing or usage of trade or course of performance.” Id. § 4 cmt. a.
¶31 Not all promises are enforceable under the law of
contracts. Generally, a promise is legally enforceable where it is
part of “a bargain in which there is a manifestation of mutual
assent to the exchange and a consideration.” Id. § 17(1). An
enforceable contract thus consists of the terms of a bargained-for
exchange between the parties. And the terms of the bargain are
8
Cite as: 2021 UT 43Opinion of the Court
defined by the meeting of the minds of the parties—through an
offer and acceptance upon consideration. 1
¶32 “A bargain is an agreement to exchange promises or to
exchange a promise for a performance or to exchange
performances.” Id. § 3. Ordinarily, a bargain is “made by an offer
by one party and an acceptance by the other party or parties, the
offer specifying the two subjects of exchange to which the offeror
is manifesting assent.” Id. § 3 cmt. d. The offer and acceptance, in
other words, must have “reference” to each other. Id. § 23. The
terms of the promise or promises must be a matter of mutual
assent upon a bargained-for exchange—typically, one party’s
statement of “what he will do and what he requires in exchange”
will be followed by the other party’s assent to those terms. Id. § 22
cmt. a. 2
¶33 The terms of the bargained-for exchange must be reflected
in a manifestation of the parties’ assent. See id. § 18. But as with
the promise itself, assent to the terms of the exchange may be
made through “written or spoken words or by other acts or by
failure to act.” Id. § 19(1). In some circumstances and in some
settings, the lack of assent will be made clear. For either “words”
or “non-verbal conduct,” however, there may sometimes be doubt
about whether there has been a manifestation of assent. See id. § 19
cmt. a (noting that words or conduct may have “different
meanings to different people”). 3
______________________________________________________________________________
1 See Aquagen Int’l, Inc. v. Calrae Tr., 972 P.2d 411, 413 (Utah
1998) (“The formation of a contract requires a bargain in which
there is a manifestation of mutual assent to the exchange and a
consideration.”) (citation and internal quotation marks omitted);
John Call Eng'g, Inc. v. Manti City Corp., 743 P.2d 1205, 1207 (Utah
1987) (“[I]t is a basic principle of contract law that there can be no
contract without the mutual assent of the parties.”).
2 See Aquagen Int’l, 972 P.2d at 413 (“Consideration sufficient to
support the formation of a contract requires that a performance or
a return promise must be bargained for.”) (citation and internal
quotation marks omitted).
3 See Rapp v. Salt Lake City, 527 P.2d 651, 654 (Utah 1974)
(holding that mutual assent may be manifested by “words or
actions or both” (citation omitted)).
9
ROSSI v. UNIVERSITY OF UTAH
Opinion of the Court
¶34 Any such doubt again may be resolved in light of any
relevant course of dealing, usage of trade, or course of
performance. 4 Assent may be found if in the relevant
circumstances, a party would “know[] or ha[ve] reason to know
that the other party may infer” from his words or conduct that
“he assents” to the terms of the deal. Id. § 19(2). The converse also
holds. There is no assent (and thus no bargained-for exchange) if
there is no basis for a conclusion that the other party would know
or have reason to know that the other party may infer a basis for
assent to the terms of a bargained-for exchange.
¶35 The parties to an exchange may choose to specify that
their promises “shall not affect legal relations”—as in a disclaimer
that a given document “is not to be a legal agreement or subject to
legal jurisdiction in the law courts.” Id. § 21 & cmt. b. That kind of
statement should be carefully scrutinized but is given effect. It
“may mean that no bargain has been reached, or that a particular
manifestation of intention is not a promise” that is enforceable
under the law of contracts. Id. § 21 cmt. b. 5
B. Rossi’s Claims
¶36 The above framework sets the stage for the inquiry into
the terms of any alleged contract between a university and its
students. Not every assurance or statement made by a university
can be viewed as a term of a legally enforceable contract. To
qualify as such a term, the university’s statement would have to
be a “promise” made in a “bargain” in exchange for a promise or
performance by students. And the promise would be enforceable
in contract only if the university and the students “assented” to
______________________________________________________________________________
4 See Hector, Inc. v. United Sav. & Loan Ass'n, 741 P.2d 542, 546
(Utah 1987) (“Course of dealing or industry usage and custom is
admissible evidence to construe ambiguous terms of an
agreement or to supply missing terms in an otherwise valid
agreement, at least under certain circumstances; but evidence of a
course of dealing and industry usage and custom does not suffice
to create a whole agreement. . . .” (citation omitted)).
5 See Johnson v. Morton Thiokol, Inc., 818 P.2d 997, 1003 (Utah
1991) (holding that there was no contract based on an employee
handbook where the handbook disclaimed intent to form a
contract).
10
Cite as: 2021 UT 43Opinion of the Court
the terms of the bargain and did not disclaim the prospect of its
resolution by courts of law.
¶37 Any of these inquiries may be resolved by the express
language of the parties. And where such language is unclear, any
ambiguities may be resolved by reference to a course of dealing or
established practice in a university community.
¶38 Established practice likely would sustain a basis for an
enforceable contract between a university and its students on at
least some points. It seems clear, for example, that the university
promises to provide the means to enroll in classes and to qualify
for a degree in exchange for student payment of tuition (or
qualification for a scholarship). And presumably the university
would be subject to suit for breach of contract if it accepted
payment of tuition and refused to allow a student to enroll in
classes. See Vought v. Tchrs. Coll., Columbia Univ., 127 A.D.2d 654,
654–55 (N.Y. App. Div. 1987) (stating that admission of a student
establishes a basis for concluding that there is a contract that
“states that if the student complies with the terms prescribed by
the university, he will obtain the degree he seeks”).
¶39 Yet not every express statement or promise can be viewed
as a term of a bargained-for exchange to be enforced in a court of
law. A university’s promise will not be enforceable in contract if it
is not made in exchange for a student’s performance or promise,
or where the university openly states that its promise is not
subject to the jurisdiction of the courts. And many informal, day-
to-day assurances by university personnel may be viewed (in light
of established practice) as falling outside the realm of the law of
contracts.
¶40 We consider Rossi’s claims for breach of contract under
these standards. And we affirm the dismissal of each of her claims
on the grounds that she has failed to identify a genuine issue of
material fact and the University is entitled to judgment as a matter
of law.
1. The Student Code
¶41 Rossi first asserts a claim for breach of contract arising
under Policy 6-400, also known as the Student Code. The Student
Code is an element of the University’s General Catalog. Because
the Catalog and Code were made available to students upon
enrollment and set forth specific assurances made by the
University, Rossi claims that these assurances are enforceable
11
ROSSI v. UNIVERSITY OF UTAH
Opinion of the Court
promises under the law of contract. And she asserts that the
University breached the contract in various ways.
¶42 Rossi points to certain “rights” specified in Policy 6-400 of
the Student Code: (1) “a right to support and assistance from the
University in maintaining a climate conducive to thinking and
learning”; (2) “a right to due process in any proceeding involving
the possibility of substantial sanctions . . . includ[ing] a right to be
heard, a right to decision and review by impartial persons or
bodies, and a right to adequate notice”; and (3) “a right to be
treated with courtesy and respect.” And Rossi claims that the
University breached its contract by failing to provide her
adequate due process, by failing to provide support in
“maintaining a climate conducive to thinking and learning,” and
by violating her right “to be treated with courtesy and respect.”
¶43 Rossi asserts that there are disputed questions of fact as to
whether and to what extent the University lived up to the
standards set forth in the Student Code. And she insists that she is
entitled to a remand to allow her to develop and present her
breach of contract claim at a trial on the merits.
¶44 We disagree and affirm. Rossi’s Student Code claim fails
as a matter of law because she has failed to establish a basis for
concluding that the terms of Policy 6-400 were assented to by the
parties as an element of an enforceable, bargained-for exchange.
Conceivably, a university catalog could be viewed to establish the
elements of an enforceable contract between a university and its
students. But the terms of such a catalog are controlling. And here
there is no enforceable contract because the catalog expressly
states it “is not a contract between the University of Utah and any
person or entity.”6
¶45 That is fatal to Rossi’s first claim for breach of contract. As
noted above, the parties to a contract may expressly state their
understanding that a given promise is not to be treated as a
subject of a bargained-for exchange to be enforced in the courts of
law. See RESTATEMENT (SECOND) OF CONTRACTS § 21 & cmt. b. (AM.
______________________________________________________________________________
6 Rossi challenges this conclusion in her reply brief, asserting
that the Policy 6-400 terms that she relies on are somehow distinct
from the Policy-6-400 terms set forth in the Student Code
incorporated in the General Handbook. But the terms of the two
provisions are identical. And Rossi’s argument accordingly fails.
12
Cite as: 2021 UT 43Opinion of the Court
L. INST. 1981); Johnson v. Morton Thiokol, Inc., 818 P.2d 997, 1003
(Utah 1991) (holding that “clear and conspicuous language
disclaiming any contractual liability” prevents the formation of a
contract). Because the catalog clearly and expressly disclaims the
existence of an enforceable contract, it cannot be cited as a basis
for a claim for breach of contract.
2. Faculty Code and Conflict of Interest Policy
¶46 Rossi next asserts breach of contract claims under the
terms of the Faculty Code and the Conflict of Interest Policy.
These documents regulate aspects of the relationship between the
University and its faculty. The Faculty Code requires faculty to
conduct themselves “in accordance with reasonable standards of
professionalism” and to “maintain regular office hours.” It also
prohibits “intentional neglect” by faculty of “necessary
communications.” The Conflict of Interest Policy prescribes
procedures for disclosure and management of activities resulting
in a conflict of interest.
¶47 Rossi asserts that the University failed to satisfy the terms
and conditions of these documents and thereby affected her
standing as a Ph.D. student. She alleges that Dr. Dudek neglected
“necessary communications” with her and failed to conduct
himself in accordance with reasonable standards of
professionalism. She also contends that the University failed to
follow the procedures for management of Dr. Dudek’s conflict of
interest in his involvement with research involving the Epoch
device. And she again asserts that the district court erred in
dismissing these claims as a matter of law.
¶48 Again we disagree and affirm. Rossi has failed to identify
a basis in the record for concluding that the terms of the Faculty
Code or Conflict of Interest Policy were assented to as the terms of
a bargained-for exchange between the University and its students.
These documents on their face are aimed only at regulating the
relationship between the University and its faculty.
¶49 Rossi does not argue the contrary. At most she claims that
she was an intended third-party beneficiary of these contracts. But
that argument fails as a matter of law. To have a right to sue as an
intended third-party beneficiary, Rossi would have to establish
that the Faculty Code and Conflict of Interest Policy were
“undertaken for [her] direct benefit” in contract terms that
“affirmatively make this intention clear.” SME Indus., Inc. v.
Thompson, Ventulett, Stainback & Assocs., Inc., 2001 UT 54, ¶ 47, 28
P.3d 669 (citation and internal quotation marks omitted). Neither
13
ROSSI v. UNIVERSITY OF UTAH
Opinion of the Court
of these documents has any terms that make such intention clear.
At most, they make references to students as incidental
beneficiaries of policies governing faculty. That is insufficient.
And Rossi accordingly is in no position to assert a claim for
breach of contract under these documents.
3. Research Misconduct Policy
¶50 Rossi next turns to the terms of the Research Misconduct
Policy—a document that expressly states that it “applies to any
university employee, faculty, student, staff or other individual
who participates in” a “research project” (emphasis added). Rossi
notes that she was involved as a student in a University research
project. And she alleges that the University breached the terms of
the Research Misconduct Policy in its response to a “written
complaint” by Dr. Dudek alleging that she had engaged in
“misconduct” in her research. Among other things, Rossi alleges
that the University failed to fulfill the requirement in the Research
Misconduct Policy to “undertake diligent efforts, as appropriate,
to restore the reputations of persons alleged to have engaged in
misconduct when such allegations are not confirmed, and to
protect the positions and reputations of those persons who, in
good faith, report apparent misconduct.”
¶51 Rossi asserts that the misconduct allegations against her
were “not confirmed.” She claims that the University thus had a
legally enforceable duty to “undertake diligent efforts . . . to
restore” her reputation. And she accordingly contends that the
district court erred in dismissing her claim for breach of contract
as a matter of law.
¶52 We again disagree. As the plaintiff on this breach of
contract claim, Rossi bore the burden of coming forward with
evidence not just of the terms of the Research Misconduct Policy,
but of a basis for concluding that such terms were elements of a
bargained-for exchange between the University and its students.
This she failed to do.
¶53 Rossi points to no language in the Research Misconduct
Policy that suggests that the standards it states are promises made
by the University in exchange for a promise or performance by
students. She likewise fails to identify any basis in any established
practice or course of performance for treating the terms of this
document as the elements of a legally enforceable exchange.
¶54 The document, in fact, points against such conclusion.
Nowhere does the document refer to any promise or performance
14
Cite as: 2021 UT 43Opinion of the Court
by students in exchange for the procedures prescribed by the
University. And nowhere is there a “reference” connecting any
such student promise or performance to the University’s
standards. RESTATEMENT (SECOND) OF CONTRACTS § 3 (AM. L. INST.
1981) (providing that a “bargain” requires “an agreement to
exchange promises or to exchange a promise for a performance or
to exchange performances”); id. § 23 (noting that there is assent to
an exchange where an offer and acceptance have “reference” to
each other).
¶55 The Research Misconduct Policy reads as an internal
operating manual for resolution of misconduct through
procedures within the University community. There is no
indication of a legally enforceable, bargained-for exchange. The
University is agreeing to follow certain procedures internally and
to “undertake diligent efforts, as appropriate.” But Rossi has
identified no basis for treating the University’s assurances as a
basis for a legally enforceable contract. We affirm on that basis.
4. Policy Statement
¶56 Rossi also asserts a claim for breach of contract under a
Policy Statement on Academic Standards of the Neuroscience
Program. This document prescribes certain requirements for
students in the Neuroscience Program. It also outlines procedures
for Program faculty or officials to follow in the event of “failure to
meet academic standards” or of “academic misconduct.”
¶57 Rossi claims that she was dismissed from the Program for
academic misconduct but not afforded the process required under
the Policy Statement. She asserts that there are at least disputes of
fact on the basis for her dismissal. And she again contends that
the district court erred in dismissing her claim as a matter of law.
¶58 We disagree and affirm. The Policy Statement claim fails
for the same reasons that the Research Misconduct Policy claim
fails. Rossi has failed to identify a basis for concluding that the
terms of the Policy Statement are the elements of a legally
enforceable, bargained-for exchange. Again she has identified
nothing in the language of the Policy Statement or in any
established practice for concluding that this was anything other
than an internal operating manual.
¶59 The Policy Statement, if anything, cuts the other way. It
makes no mention of any student promise or performance
provided in exchange for the procedures set forth in the
document. And it expressly reserves discretion for Program
15
ROSSI v. UNIVERSITY OF UTAH
Opinion of the Court
officials and provides for resolution through a dispute-resolution
system operating within the University community—with roles
for the Program Director, the Curriculum Committee, the Dean of
the Graduate School, and an Academic Appeals and Misconduct
Committee.
¶60 Rossi has identified no basis for concluding that the Policy
Statement established the terms of an enforceable contract. And
her claim under this document was properly dismissed as a
matter of law.
5. AAMC Compact
¶61 Rossi asserts another breach of contract claim under a
“Compact” she and Dr. Kesner signed during a period in which
Kesner was her faculty mentor. The Compact is a document
prepared by the AAMC. It identifies certain expectations of a
faculty mentor, such as providing “an environment that is
intellectually stimulating, emotionally supportive, safe, and free
of harassment”; meeting “one-on-one” with the student “on a
regular basis”; avoiding conflicts of interest that could “interfere”
with the student’s research; compliance with “appropriate
disclosure policies regarding possible financial interests in
organizations that may have substantial fiscal relationship with
the University”; and providing 15-days’ written notice of any
intent to discharge a student from a research lab.
¶62 This document admittedly might appear to come closer to
establishing the terms of an enforceable bargained-for exchange
with a student. The Compact states that “[a] successful student-
mentor relationship requires commitment from the student,
mentor, graduate program, and institution.” And it identifies
responsibilities not just of the mentor but also of students.
¶63 It is by no means obvious, however, that this is a
document that establishes the terms of a bargained-for exchange
between mentors and students. The Compact nowhere says that
the mentor’s promises are being offered in exchange for the
student’s performance or promises. And the document expressly
states that it is aimed at “offer[ing] a set of broad guidelines which
are meant to initiate discussions at the local and national levels
about the student-mentor relationship.”
¶64 If the question were squarely presented to us, we might
be inclined to conclude that a document like this does not
establish the terms of a bargained-for exchange without some
showing of an established practice of treating it as such. We need
16
Cite as: 2021 UT 43Opinion of the Court
not and do not reach that question here, however, because Rossi’s
claim fails on a threshold basis.
¶65 Rossi’s claim for breach is rooted in alleged failures of Dr.
Dudek to abide by the terms of the Compact. And she has
established only that Dr. Kesner (not Dr. Dudek) signed the
Compact.
¶66 Rossi has identified no basis for holding Dr. Dudek to a
document he did not sign. And we conclude that her claim for
breach of the Compact fails as a matter of law on that basis.
6. Remediation Plan Letter
¶67 Rossi last asserts that the University breached a contract
established by the terms of a Remediation Plan Letter sent by her
dissertation committee on November 22, 2013. The letter
conveyed the Committee’s concern that Rossi’s “current
performance” had fallen short of the “standard of scientific rigor
and thoughtfulness required for successful completion” of a Ph.D.
But it invited her to “significantly increase” the “intellectual rigor
evident in all aspects of [her] dissertation work.” And it offered to
allow her to present a “second defense” of her dissertation by
August 25, 2014, under “expectations and deadlines” set forth in
the letter.
¶68 Rossi alleges a breach of contract in the failure of Program
officials to follow through on the terms of this Remediation Plan
Letter. She notes that the University dismissed her from the
Program in a letter dated January 14, 2014. And she asserts that
such dismissal was a breach of the terms offered in the
Remediation Plan Letter.
¶69 We need not decide whether the Remediation Plan Letter
set forth the terms of an offer to enter into a legally enforceable
contract because Rossi rejected that offer. She did so by
responding to the Remediation Plan Letter by filing a grievance
demanding an alternative timeline, office space, specific and
written feedback, access to committee members, and that all
committee meetings to be recorded. And that grievance took any
offer off the table and foreclosed the establishment of a contract
under the terms of the Remediation Plan Letter. See Cal Wadsworth
Constr. v. City of St. George, 898 P.2d 1372, 1378 (Utah 1995) (noting
that a “proposal of different terms from those of the offer
constitutes a counteroffer, and no contract arises”).
¶70 Rossi insists that her response could not have been a
rejection of an offer because it was directed to two University
17
ROSSI v. UNIVERSITY OF UTAH
Opinion of the Court
deans and not to the authors of the Remediation Plan Letter (Drs.
Dudek and Keefe). We disagree. Rossi’s breach of contract claim is
asserted against the University. And University deans are agents
of the University and thus in a position to decide whether to enter
into a contract on its behalf—at least as much as the authors of the
Remediation Plan Letter were. Rossi’s grievance accordingly
functioned as a rejection and counter-offer and foreclosed the
formation of a contract based on an acceptance of its terms.
¶71 We affirm the dismissal of the breach of contract claim
under the Remediation Plan Letter on this basis. We hold that the
Remediation Plan Letter was at most an offer, which was not
accepted by Rossi.
II. BREACH OF THE COVENANT OF
GOOD FAITH AND FAIR DEALING
¶72 We also affirm the dismissal of Rossi’s claim for breach of
the covenant of good faith and fair dealing. “Our cases have . . .
chart[ed] a limited role” for this covenant. Young Living Essential
Oils, LC v. Marin, 2011 UT 64, ¶ 9, 266 P.3d 814. On one hand, we
have established an inference that every contract carries a “duty to
perform” it “in the good faith manner that the parties surely
would have agreed to if they had foreseen and addressed the
circumstance giving rise to their dispute.” Id. ¶ 8. On the other
hand, we have noted that “the judicial inference of contract terms
is . . . fraught with peril, as its misuse threatens commercial
certainty and breed[s] costly litigation.” Id. (alteration in original)
(citation and internal quotation marks omitted).
¶73 With these concerns in mind, we have carefully
circumscribed the scope of the covenant of good faith and fair
dealing. “First, we have recognized an implied duty that
contracting parties refrain from actions that will intentionally
destroy or injure the other party’s right to receive the fruits of the
contract.” Id. ¶ 9 (citation and internal quotation marks omitted).
Second, we have held that a court “may recognize a covenant of
good faith and fair dealing where it is clear from the parties’
‘course of dealings’ or a settled custom or usage of trade that the
parties undoubtedly would have agreed to the covenant if they
had considered and addressed it.” Id. ¶ 10 (citation omitted). “By
enforcing these standards and limitations, our cases preserve the
core role of the covenant of good faith while controlling against its
misuse to the detriment of commercial security and reliance.” Id.
18
Cite as: 2021 UT 43Opinion of the Court
¶74 Rossi’s claim falls short under these standards. She has
asserted that the University breached the covenant of good faith
and fair dealing when it “used its discretion unreasonably, made
it impossible for her to progress in her dissertation work, and
otherwise deprived her of the fruits of the relationship.” But she
has nowhere connected this claim to the specific “fruits” of any
particular provision of a contract with the university. Nor has she
identified any basis for her claim in the parties’ “course of
dealings or settled custom or usage of trade.” Instead, she has
merely identified record evidence suggesting that the university
acted unreasonably or unfairly in her view—evidence that she
says that a “jury could rely on . . . even if the University did not
breach any express policy or other part of the parties’ contract.”
¶75 This is insufficient under our law. See id. ¶ 12 (affirming
dismissal of a claim for breach of the covenant in light of the
plaintiff’s failure to identify a basis for his claim under these
standards). And we affirm the district court’s judgment on this
basis. 7
III. NEGLIGENCE
¶76 We also agree with the district court’s grounds for
dismissing Rossi’s negligence claim. In advancing this claim,
Rossi is asking us to establish either a fiduciary duty of educators
to students or a duty based on a special relationship between
educators and students.
______________________________________________________________________________
7 The district court’s decision was rooted in part in the notion
that the covenant of good faith and fair dealing cannot be used to
establish “new, independent rights or duties” that the parties had
not agreed upon. And as Rossi notes, this is an incorrect statement
of our law as it now stands. See Young Living Essential Oils, LC v.
Marin, 2011 UT 64, ¶ 10 n.4, 266 P.3d 814 (disavowing this
language in our precedent, explaining that the prohibition is
“against using the covenant to establish new rights or duties that
are ‘inconsistent with express contractual terms,’” and explaining
that the “covenant would be completely negated if it could never
establish any independent rights not expressly agreed to by
contract”) (emphasis in original).
We thus reject the district court’s analysis to the extent it was
rooted in this now-disavowed principle. But we nonetheless
affirm the dismissal of Rossi’s claim for reasons set forth above.
19
ROSSI v. UNIVERSITY OF UTAH
Opinion of the Court
¶77 We see no basis for such a duty. The professional
responsibilities of faculty to students generally are established not
by tort law but by other means. In a university setting, many of
these responsibilities are set forth in formal or informal policies
and procedures prescribed by the university and published to
students. By tradition and established practice, a student who
alleges that such policies or procedures were not followed is
entitled to review through the internal processes of the university.
¶78 Rossi has identified no persuasive ground for overriding
the above by imposition of a general duty of faculty to students.
To date, the courts that have considered this question have
generally declined to establish such a duty. 8 And we see no
reason to reach a contrary conclusion.
¶79 In so stating, we are not concluding that no tort duty
could ever arise in a university setting. A university official may
have a duty to avoid an unreasonable risk of physical harm to
students they interact with in certain circumstances. Our court of
appeals established such a duty in Cope v. Utah Valley State Coll.,
2012 UT App 319, ¶¶ 17, 24, 290 P.3d 314, (holding that a college
dance instructor had a “duty not to create an unreasonable risk of
harm” in a circumstance in which the instructor specifically
directed students to perform a dangerous lift in a dance routine
after they had previously failed and fallen), aff’d in part, rev’d in
part, 2014 UT 53, 342 P.3d 243. And we can see a plausible basis
for upholding that kind of duty in a university setting.
______________________________________________________________________________
8 See Rossi v. Univ. of Utah, No. 2:15-CV-00767, 2016 WL
3570620, at *8 (D. Utah June 24, 2016) (“[T]he imposition of a
fiduciary duty by a professor or mentor toward a graduate
student has never been imposed by Utah statutory or case law.”).
See also, e.g., Ernest v. Univ. of Phoenix, No. 08-CV-2363-H (POR),
2010 WL 11508435, at *5 (S.D. Cal. July 27, 2010) (“The allegation
that universities, university officials, directors, and professors
have a fiduciary relationship to students because they extend
guidance in shaping careers and provide direction to students
does not give rise to a fiduciary duty.” (citation and internal
quotation marks omitted)); Swenson v. Bender, 764 N.W.2d 596, 602
(Minn. Ct. App. 2009) (“[T]he advisor-student relationship in the
dissertation process is not a fiduciary relationship per se.”).
20
Cite as: 2021 UT 43Opinion of the Court
¶80 In so concluding we are not expressly endorsing the duty
established by the court of appeals in Cope. We sidestepped the
issue previously in affirming the Cope decision on alternative
grounds. Cope, 2014 UT 53, ¶ 39. And we again stop short of
addressing the question here because it is unnecessary to our
decision.
¶81 Rossi is not seeking to establish a duty of university
officials to avoid an unreasonable risk of physical harm. She is
seeking the imposition of a duty to do what is reasonably
necessary to provide an effective educational experience. And we
decline to establish such a duty for reasons set forth above.
CONCLUSION
¶82 Christina Rossi has identified grounds for a legitimate
difference of opinion on the wisdom or correctness of the
University’s decision to dismiss her from the Neuroscience Ph.D.
program. But she has not identified a basis for a legal cause of
action against the University. We affirm the dismissal of her
claims for breach of contract, breach of the covenant of good faith
and fair dealing, and negligence.
21