2021 UT 43

IN 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.
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Opinion of the Court

2

¶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.
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¶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.
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¶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.
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¶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. 
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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 
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7

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. § 53-5a102(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 
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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 
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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)).
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¶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).
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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, dayto-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 
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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.
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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 
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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 
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Opinion of the Court

15

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 
ROSSI v. UNIVERSITY OF UTAH

Opinion of the Court

16

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 studentmentor 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 
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Opinion of the Court

17

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 
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Opinion of the Court

18

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.
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19

¶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.
ROSSI v. UNIVERSITY OF UTAH

Opinion of the Court

20

¶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.”).
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Opinion of the Court

21

¶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.