IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

NICOLE AUSTIN-HALL, as 

Administrator of the Estate of 

Alexandria Austin,

Plaintiff,

v.

ARIEL S. WOODARD, et al., 

Defendants.

:

:

:

Case No. 3:18-cv-270

JUDGE WALTER H. RICE

DECISION AND ENTRY SUSTAINING NUNC PRO TUNC

PLAINTIFF’S MOTION FOR LEAVE TO FILE EXCESS PAGES (DOC. 

#82); SUSTAINING IN PART AND OVERRULING IN PART 

DEFENDANT WILBERFORCE UNIVERSITY’S MOTION TO STRIKE 

AFFIDAVITS (DOC. #86); SUSTAINING DEFENDANT WILBERFORCE 

UNIVERSITY’S MOTION FOR SUMMARY JUDGMENT (DOC. #81); 

VACATING NOVEMBER 2, 2020, TRIAL DATE; CONFERENCE CALL 

SET FOR OCTOBER 21, 2020

Plaintiff, Nicole Austin-Hall, as administrator of the estate of her daughter, 

Alexandria Austin, filed suit against Ariel Woodard, Alana Wedderburn, Shala 

Sylvester, and Wilberforce University. She asserts claims of negligence resulting in 

wrongful death, survivorship, and willful, wanton and reckless misconduct against 

all Defendants. She also asserts claims of negligent misrepresentation, intentional 

misrepresentation and promissory estoppel against Wilberforce University. This 

Court’s jurisdiction is based on diversity of citizenship. 

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This matter is currently before the Court on three pending motions: (1) 

Defendant Wilberforce University’s Motion for Summary Judgment, Doc. #81; (2) 

Plaintiff’s unopposed Motion for Leave to File Excess Pages, Doc. #82; and (3) 

Defendant Wilberforce University’s Motion to Strike Affidavits, Doc. #86. 

I. Background and Procedural History 

Wilberforce University, located in Xenia, Ohio, has an Alcohol and Drug 

Policy that strictly prohibits the possession of alcohol and illicit drugs on campus. 

Students are subject to suspension or expulsion for violating this policy. Doc. #81-

1, PageID#1060. Nevertheless, not surprisingly, the students sometimes break the 

rules. In this case, the consequences were tragic. 

In the Fall of 2017, Alexandria Austin, Ariel Woodard and Alana Wedderburn 

were students at Wilberforce University. Shala Sylvester was a student at nearby 

Central State University. On the evening of September 25, 2017, the four women

attended a birthday party in one of the dorm rooms on the Wilberforce campus. In 

violation of the university’s Alcohol and Drug Policy, they consumed alcohol at that 

party.

Sometime after midnight, Shala Sylvester asked Alana Wedderburn to give 

her a ride back to Central State University. Alexandria Austin and Ariel Woodard 

asked if they could go along. Before they got in the car, Wedderburn, who was 

feeling “extremely tired” and a “little tipsy,” asked Woodard to drive. Doc. #76, 

PageID#818. Woodard agreed. Austin climbed in the front passenger seat. 

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Sylvester was behind Woodard in the back seat, and Wedderburn was behind 

Austin. 

Wedderburn testified that they initially turned right out of the campus 

parking lot to go to a nearby gas station. However, when Sylvester indicated that 

she wanted to be dropped off at Central State University first, Woodard did a Uturn and headed back the other way. Id. at PageID##819-20. According to 

Sylvester, Woodard was driving very fast. “I just remember her flying.” Doc. #75, 

PageID#782. 

An Ohio State Highway Patrol Traffic Crash Report indicates that, at 

approximately 2:33 a.m., on September 26, 2017, as Woodard attempted to 

negotiate a curve on North Bickett Road, the car left the pavement and struck a 

gas line post and then a tree. The car’s airbags were deployed. The airbag control 

module indicates that the vehicle was traveling 89 mph before it left the road. At 

the time the car left the pavement, it was traveling 77 mph. At the time it struck 

the tree, it was still traveling 55 mph. Doc. #81-2, PageID##1162-94.

Alexandria Austin, Plaintiff’s 21-year-old daughter, was declared dead at the 

scene. Id. at PageID#1195. The coroner’s report indicates that she had alcohol 

and marijuana in her system at the time of the accident. Id. at PageID#1197. The 

three other women suffered very serious injuries. Woodard’s blood alcohol level 

exceeded the legal limit at the time of the crash. Doc. #83, PageID#1208. She 

later pled no contest to charges of aggravated vehicular homicide, aggravated 

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vehicular assault, and operating a vehicle under the influence of alcohol. She was 

sentenced to four years in prison. Doc. #77-1, PageID##854-56. 

Plaintiff, Nicole Austin-Hall, as administratrix of her daughter’s estate, filed 

suit against Woodard, Wedderburn, Sylvester and Wilberforce University. Counsel 

has represented to the Court that tentative settlements have been reached with all 

Defendants except Wilberforce University. Wilberforce University has now moved 

for summary judgment on all claims asserted against it. Doc. #81. 

 

II. Wilberforce University’s Motion to Strike Affidavits (Doc. #86) 

The Court turns first to Wilberforce University’s Motion to Strike the 

Affidavits of Nicole Austin-Hall and Alazia Mixon, Doc. #86, submitted by Plaintiff 

in support of her memorandum in opposition to the motion for summary judgment. 

Wilberforce University argues that these two affidavits violate the “sham 

affidavit” rule and must be stricken. Under the “sham affidavit” rule, “[a] party 

may not create a factual issue by filing an affidavit, after a motion for summary 

judgment has been made, which contradicts her earlier deposition testimony.” 

Reid v. Sears, Roebuck & Co., 790 F.2d 453, 460 (6th Cir. 1986). The Sixth 

Circuit has held that:

If the affidavit directly contradicts prior sworn testimony, it should be 

stricken “unless the party opposing summary judgment provides a 

persuasive justification for the contradiction.” Aerel, 448 F.3d at 908. 

If the affidavit does not directly contradict prior sworn testimony, it 

should be stricken if it is “an attempt to create a sham fact issue.” Id.

at 908–09 (citation omitted).

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France v. Lucas, 836 F.3d 612, 622 (6th Cir. 2016) (citing Aerel, SRL v. PCC 

Airfoils, LLC, 448 F.3d 899, 908-09 (6th Cir. 2006)). Nevertheless, the “sham 

affidavit” rule does not prevent a party “who was not directly questioned about an 

issue from supplementing incomplete deposition testimony with a sworn affidavit.” 

Aerel, 448 F.3d at 907. 

A. Nicole Austin-Hall 

Wilberforce University moves to strike paragraph 15 of Nicole Austin-Hall’s 

affidavit, in which she states that she “had substantial influence over which 

college [Alexandria] attended.” Doc. #84, PageID#1247. The university argues 

that this directly conflicts with Plaintiff’s deposition, in which she testified that she 

did not help Alexandria with the application process, and that, despite applying to 

several other universities, Alexandria was accepted only at Wilberforce. Doc. #69, 

PageID#521. 

The Court finds no direct contradiction.1

 The fact that Plaintiff did not help 

Alexandria complete her college application does not necessarily mean that she did 

not have substantial influence over which college she attended. Plaintiff’s affidavit 

makes it clear that Alexandria could not have attended Wilberforce without her 

approval and financial support. Doc. #84, PageID##1248-49. She was not asked 

about this at her deposition. Moreover, although Wilberforce was the only

1

 Wilberforce University does not argue that this statement was submitted in an 

attempt to create a sham issue of fact that would preclude summary judgment on 

any of Plaintiff’s claims. 

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university that accepted Alexandria’s application, this does not necessarily mean 

that there were no other viable options; Alexandria could have applied to additional

colleges. Accordingly, the Court OVERRULES the motion to strike paragraph 15. 

Paragraphs 21-26 of Plaintiff’s affidavit explain that at orientation, a black 

male Wilberforce employee told her, first in the group orientation and again in a 

private conversation, that the Alcohol and Drug Policy was strictly enforced. He 

allegedly also assured her that Alexandria would be “safe” attending Wilberforce.2 

Plaintiff avers that his statements were a “substantial factor in Alexandria 

attending and remaining at Wilberforce,” and that she “relied on those statements 

in allowing and enabling Alexandria to attend Wilberforce.” Id. at PageID#1248. 

Wilberforce argues that, because Austin-Hall admitted at her deposition that 

she did not visit Wilberforce University until the day that Alexandria moved in, 

Doc. #69, PageID#521, any statements made by this employee concerning the 

university’s strict enforcement of the Alcohol and Drug Policy could not have been 

a contributing factor in the decision to allow Alexandria to attend Wilberforce.

Again, the Court finds no direct contradiction and no evidence that this 

statement was submitted to create a sham factual dispute. Even if Plaintiff 

logically could not have relied on the employee’s statements in allowing Alexandria 

to enroll at Wilberforce, she could have relied on them in allowing Alexandria to 

remain there, with her continued financial support, following orientation. 

2

 Such statements are not offered for the truth of the matter asserted, but rather 

to show their effect on Plaintiff. Therefore, they are not hearsay. 

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Accordingly, the Court also OVERRULES the motion to strike this portion of 

Plaintiff’s affidavit. 

B. Alazia Mixon 

Wilberforce next moves to strike paragraphs 5, 6 and 7 of Alazia Mixon’s 

affidavit. Those read as follows:

5. While I attended Wilberforce, university officials did not 

enforce the policy of no drinking and no drugs in the 

university dormitories. Alcohol and marijuana were often 

present in the dormitories. 

6. It was common for people, including those who were 

underage, to gather in the parking lot in front of 

Henderson and play music, drink, and smoke marijuana. 

These activities were going on in a place where police, 

and university officials, were able to observe, but they 

did not intervene.

7. On the night Alexandria Austin was killed, I saw people 

gathered outside in the parking lot in front of Henderson 

dormitory playing music and drinking alcohol, similar to 

what I had seen in the past.

Doc. #84, PageID##1252-53.

Wilberforce argues that these paragraphs are directly contradicted by 

Mixon’s deposition testimony. See, e.g. Doc. #74, PageID##687-88, 698-701, 

709-10, 719-22, 727-29, 747-48.

Plaintiff points out, however, that, because Mixon’s deposition was taken on 

February 11, 2020, 5 months after she executed her September 11, 2019, 

affidavit, the sham affidavit rule does not apply. See Webb v. United States, 789 

F.3d 647, 660-61 (6th Cir. 2015) (holding that the doctrine is inapplicable where 

the statements sought to be discredited do not contradict earlier statements). 

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Wilberforce argues that, even if the Court finds that the “sham affidavit” 

rule does not apply because the affidavit was executed prior to the deposition, the 

Court should still strike the affidavit as a discovery sanction under Fed. R. Civ. P. 

37(c)(1), given that the affidavit was never disclosed during discovery and Plaintiff 

is now attempting to use it to support her claims. Rule 37(c)(1) states that "[i]f a 

party fails to provide information or identify a witness as required by Rule 26(a) or 

(e), the party is not allowed to use that information or witness to supply evidence 

on a motion, at a hearing, or at a trial, unless the failure was substantially justified 

or is harmless."3 Wilberforce argues that Plaintiff’s failure to produce the affidavit 

during discovery was neither “substantially justified” nor “harmless.” Had it 

known of Mixon’s affidavit, Wilberforce would have cross-examined her on its 

contents during her deposition. Plaintiff has not sought leave to file a surreply to 

address this argument.

Although the “sham affidavit” rule does not bar consideration of Mixon’s 

affidavit, Fed. R. Civ. P. 37(c)(1) does. Plaintiff was required to disclose the 

substance of Mixon’s affidavit and failed to do so. The Court therefore SUSTAINS 

Wilberforce’s motion to strike Mixon’s affidavit as a discovery sanction. It will not 

be considered in ruling on the motion for summary judgment. 

3

 Fed. R. Civ. P. 26(a)(1)(A)(i) requires a party to make initial disclosure of the 

name of each individual likely to have discoverable information, along with the 

subjects of that information, that the disclosing party may use to support its claims 

or defenses. Fed. R. Civ. P. 26(e)(1) requires a party to supplement such initial 

disclosures if additional information becomes known. 

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III. Wilberforce University’s Motion for Summary Judgment (Doc. #81) 

The Court turns now to Wilberforce University’s motion for summary 

judgment, Doc. #81. As an initial matter, the Court SUSTAINS nunc pro tunc 

Plaintiff’s unopposed Motion for Leave to File Excess Pages, Doc. #82, in her 

memorandum in opposition to the motion for summary judgment.

A. Summary Judgment Standard 

Summary judgment must be entered Aagainst a party who fails to make a

showing sufficient to establish the existence of an element essential to that party=s

case, and on which that party will bear the burden of proof at trial.@ Celotex Corp.

v. Catrett, 477 U.S. 317, 322 (1986). The moving party always bears the initial 

responsibility of informing the court of the basis for its motion, and identifying 

those portions of the record which it believes demonstrate the absence of a 

genuine issue of material fact. Id. at 323; see also Boretti v. Wiscomb, 930 F.2d 

1150, 1156 (6th Cir. 1991).

AOnce the moving party has met its initial burden, the nonmoving party must

present evidence that creates a genuine issue of material fact making it necessary

to resolve the difference at trial.@ Talley v. Bravo Pitino Rest., Ltd., 61 F.3d 1241,

1245 (6th Cir. 1995); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 

250 (1986). Once the burden of production has so shifted, the party opposing 

summary judgment cannot rest on its pleadings or merely reassert its previous 

allegations. It is not sufficient to Asimply show that there is some metaphysical 

doubt as to the material facts.@ Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 

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475 U.S. 574, 586 (1986). Rule 56 Arequires the nonmoving party to go beyond 

the [unverified] pleadings@ and present some type of evidentiary material in support 

of its position. Celotex, 477 U.S. at 324. AThe plaintiff must present more than a 

scintilla of evidence in support of his position; the evidence must be such that a 

jury could reasonably find for the plaintiff.@ Michigan Prot. & Advocacy Serv., Inc. 

v. Babin, 18 F.3d 337, 341 (6th Cir. 1994).

Summary judgment shall be granted Aif the movant shows that there is no 

genuine dispute as to any material fact and the movant is entitled to judgment as a 

matter of law.@ Fed. R. Civ. P. 56(a). ASummary judgment will not lie if the dispute 

about a material fact is ‘genuine,’ that is, if the evidence is such that a reasonable 

jury could return a verdict for the nonmoving party.@ Anderson, 477 U.S. at 248. 

In determining whether a genuine dispute of material fact exists, a court must 

assume as true the evidence of the nonmoving party and draw all reasonable 

inferences in favor of that party. Id. at 255. If the parties present conflicting 

evidence, a court may not decide which evidence to believe. Credibility 

determinations must be left to the fact-finder. 10A Wright, Miller & Kane, Federal 

Practice and Procedure Civil 3d ' 2726 (1998).

In determining whether a genuine dispute of material fact exists, a court 

need only consider the materials cited by the parties. Fed. R. Civ. P. 56(c)(3). AA 

district court is not . . . obligated to wade through and search the entire record for 

some specific facts that might support the nonmoving party=s claim.@ InterRoyal 

Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989), cert. denied, 494 U.S. 

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1091 (1990). If it so chooses, however, the court may also consider other 

materials in the record. Fed. R. Civ. P. 56(c)(3). 

B. Analysis 

As previously noted, Wilberforce University has a policy that strictly 

prohibits “the possession, use, and/or distribution of paraphernalia or alcohol and 

drugs on University property.” Doc. #81-1, PageID#1060. Plaintiff Nicole AustinHall describes herself as “a devout Christian, who does not believe in drinking 

alcohol or doing illicit drugs.” Doc. #84, PageID#1246. She wanted her daughter,

Alexandria, to attend a college that prohibited the use of such substances. She 

maintains that Wilberforce’s strict drug and alcohol policy, as set forth in the 

Student Handbook, was a substantial factor in allowing Alexandria to attend there. 

Id. at PageID#1247. 

At orientation, an employee of the university discussed the Alcohol and Drug

Policy, and even privately assured Plaintiff that this policy was strictly enforced 

and that her daughter would be “safe” on campus. Plaintiff claims that she 

justifiably relied on this representation in allowing her daughter to remain at

Wilberforce following orientation. Id. at PageID#1248. According to Plaintiff, in 

reality, Wilberforce officials were fully aware that its students frequently drank 

alcohol and used illicit drugs on campus, and took little action to stop this conduct. 

Id. at PageID##1249-50. Plaintiff maintains that Wilberforce’s failure to enforce 

its policy led to Alexandria’s untimely death. 

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Austin-Hall’s Third Amended Complaint asserts four counts against 

Wilberforce University: (1) negligence resulting in wrongful death; (2) survivorship; 

(3) willful, wanton and reckless misconduct; and (4) negligent misrepresentation, 

intentional misrepresentation and promissory estoppel. Wilberforce has moved for 

summary judgment on all claims. 

1. Wrongful Death and Survivorship

Counts I and II of the Third Amended Complaint seek damages for wrongful 

death and survivorship. A wrongful death claim is asserted on behalf of the 

decedent's beneficiaries, while a survivorship claim is brought on behalf of the 

decedent herself to compensate for her conscious pain and suffering between the 

time of the injury and her resulting death. See Peters v. Columbus Steel Castings 

Co., 2007-Ohio-4787, at ¶¶ 10-11, 115 Ohio St.3d 134, 873 N.E.2d 1258; 

Monnin v. Fifth Third Bank of Miami Valley, N.A., 103 Ohio App. 3d 213, 227, 

658 N.E.2d 1140, 1149 (2d Dist. 1995). 

Both claims are based in negligence. “To maintain a wrongful death action 

on a theory of negligence, a plaintiff must show (1) the existence of a duty owing 

to plaintiff's decedent, (2) a breach of that duty, and (3) proximate causation 

between the breach of duty and the death.” Estate of Ridley v. Hamilton Cty. Bd. 

of Mental Retardation & Developmental Disabilities, 2004-Ohio-2629, ¶ 14, 102 

Ohio St. 3d 230, 233, 809 N.E.2d 2, 6. 

Here, Plaintiff alleges that Wilberforce was negligent in failing to enforce its 

Alcohol and Drug Policy. She maintains that university officials were aware that 

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students were using alcohol and illicit drugs on campus, and failed to exercise 

reasonable care in enforcing the policy. She further argues that Wilberforce was 

negligent in failing to prohibit intoxicated students from operating motor vehicles 

on campus.

In its Motion for Summary Judgment, Wilberforce argues that it owed no 

duty to Alexandria Austin and that, even if it did, Ariel Woodard’s criminal conduct 

in driving the vehicle while intoxicated is a superseding cause that breaks any 

causal connection. Because the Court finds, as a matter of law, that Wilberforce 

owed no duty to Alexandria Austin to protect her from the actions of Ariel 

Woodard, it need not reach the issue of causation. See Mussivand v. David, 45 

Ohio St.3d 314, 318 (1989) (holding that the existence of duty is a question of 

law). 

In A.M. v. Miami University, the Tenth District Court of Appeals noted that 

“there is no duty to prevent a third person from causing harm to another absent a 

special relationship between the parties or a duty imposed by statute.” 2017-

Ohio-8586, at ¶ 34, 88 N.E.3d 1013. The law is clearly established that colleges 

and universities do not stand in loco parentis, in the place of a parent. Id. at ¶ 40; 

Booker v. Lehigh Univ., 800 F. Supp. 234, 240 (E.D. Pa. 1992). The Eighth Circuit 

has noted that “since the late 1970s, the general rule is that no special relationship 

exists between a college and its own students because a college is not an insurer 

of the safety of its students.” Freeman v. Busch, 349 F.3d 582, 587 (8th Cir. 

2003) (citing Bradshaw v. Rawlings, 612 F.2d 135, 138-40 (3d Cir. 1979)). 

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In Bradshaw, the court held that, even if the college knew that its students 

would drink and drive, creating a known probability of harm to third persons, this 

created no duty of custodial care. College students are adults and must be treated 

as such. Id. at 139-42. See also Beach v. Univ. of Utah, 726 P.2d 413, 416

(Utah 1986) (holding that university had no special relationship with student that 

gave rise to an affirmative duty to supervise or protect her from injury while 

intoxicated). 

Moreover, courts have repeatedly held that, in adopting a written policy 

restricting or prohibiting alcohol use on campus, a college or university does not 

assume the duty of protecting students who violate that policy. See A.M., 2017-

Ohio-8586, at ¶49 (holding that the fact that the university adopted a written 

policy prohibiting alcohol use on campus does not mean that it assumed “a duty of 

care under negligence law”); Allen v. Rutgers, 216 N.J. Super. 189, 192-93 (N.J. 

Super. Ct. App. Div. 1987) (affirming trial court’s rejection of claim that, by 

adopting policies prohibiting the consumption of alcoholic beverages in the football 

stadium, the university assumed the duty of protecting person who violated that 

policy from injury); Bradshaw, 612 F.2d at 141 (rejecting argument that, by 

enacting regulation imposing sanctions on use of alcohol by students, university 

voluntarily assumed a “custodial relationship,” subjecting the college to liability); 

Rothbard v. Colgate Univ., 652 N.Y.S.2d 146, 148 (N.Y. App. Div. 1997) (holding 

that existence of student handbook expressly prohibiting conduct that resulted in 

plaintiff’s injuries does not mean university “voluntarily assumed the duty to take 

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affirmative steps to supervise plaintiff and prevent him from engaging in the 

prohibited activity.”); Millard v. Osborne, 611 A.2d 715, 720-21 (Pa. Super. Ct. 

1992) (rejecting claim that alcohol policy gave rise to a special duty to control 

alcohol consumption on campus); Booker, 800 F. Supp. at 240 (same). 

As the court explained in Beach, “[i]t would be unrealistic to impose upon an 

institution of higher education the additional role of custodian over its adult 

students and to charge it with responsibility for preventing students from illegally 

consuming alcohol and, should they do so, with responsibility for assuring their 

safety and the safety of others. . . . Fulfilling this charge would require the 

institution to babysit each student, a task beyond the resources of any school.” 

726 P.2d at 419. 

Plaintiff argues that this case is factually distinguishable because the student 

handbook specifically states that the Alcohol and Drug Policy would be strictly 

enforced. In Beach, however, the court explained that, even if a university enacts 

rules restricting alcohol use, this “may permit discipline of students for infractions, 

but it certainly does not change the nature of their relationship.” Id. at 420. The 

bottom line is that, regardless of the written policy, Wilberforce had no duty to 

protect Alexandria Austin from harm arising from anyone’s violation of that policy. 

Given that Wilberforce had no duty to protect Alexandria from harm caused 

by Ariel Woodard’s violation of the Alcohol and Drug Policy, Plaintiff cannot prevail 

on her claims of wrongful death or survivorship. Accordingly, the Court SUSTAINS 

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Wilberforce’s Motion for Summary Judgment on Counts I and II of the Third 

Amended Complaint. 

2. Willful, Wanton and Reckless Misconduct

Count III of the Third Amended Complaint asserts a claim of “willful, wanton 

and reckless misconduct.” Wilberforce argues that this is “a level of intent which 

negates certain defenses which might be available in an ordinary negligence 

action.” It is not a stand-alone claim. Griggy v. Cuyahoga Falls, 9th Dist. No. 

22753, 2006-Ohio-252, ¶ 8, 2006 WL 173134 (internal quotation omitted). 

Wilberforce further argues that, to the extent this claim is included to support 

Austin-Hall’s request for punitive damages, again, Ohio does not recognize it as a 

stand-alone claim. Moskovitz v. Mt. Sinai Med. Ctr., 69 Ohio St.3d 638, 649, 635 

N.E.2d 331, 342 (Ohio 1994).

By failing to respond to these arguments in her memorandum in opposition, 

Plaintiff impliedly concedes that Count III is subject to dismissal. See Brown v. 

VHS of Mich., Inc., 545 F. App'x 368, 372 (6th Cir. 2013) ("a plaintiff is deemed 

to have abandoned a claim when a plaintiff fails to address it in response to a 

motion."). The Court therefore SUSTAINS Defendant’s Motion for Summary 

Judgment on Count III of the Third Amended Complaint. 

3. Negligent Misrepresentation, Intentional Misrepresentation and 

Promissory Estoppel

Count IV of the Third Amended Complaint broadly encompasses three claims 

of negligent misrepresentation, intentional misrepresentation and promissory 

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estoppel. Each claim has the same factual basis. Plaintiff generally alleges that 

she required her daughter to attend a university that not only prohibited the use of 

illicit drugs and alcohol, but also enforced that policy. She claims that Wilberforce 

made false representations, both in its handbook and on a campus tour she took 

with her daughter, that it had in place, and strictly enforced, a policy prohibiting 

the use of alcohol and illicit drugs. She further maintains that, during orientation,

she was assured by a university representative that her daughter would be “safe” 

at Wilberforce. 

According to Plaintiff, in actuality, Wilberforce had actual knowledge that its 

students frequently violated this policy. Students often gathered in the parking lot 

to drink alcohol and consume illicit drugs, while campus police watched from 

nearby. Plaintiff alleges that, but for the negligent or intentional

misrepresentations and promises, on which she reasonably relied, she would not 

have permitted her daughter to attend Wilberforce, and her daughter would not 

have been killed in the car accident. 

Having reviewed the relevant law as applied to the facts of this case, the 

Court, finding no genuine issue of material fact, concludes that Wilberforce is 

entitled to judgment as a matter of law on each of the claims asserted in Count IV.

(i) Negligent Misrepresentation 

The Supreme Court of Ohio has described the tort of negligent 

misrepresentation as follows: 

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“One who, in the course of his business, profession or employment, or in 

any other transaction in which he has a pecuniary interest, supplies false 

information for the guidance of others in their business transactions, is 

subject to liability for pecuniary loss caused to them by their justifiable 

reliance upon the information, if he fails to exercise reasonable care or 

competence in obtaining or communicating the information.” (Emphasis 

added.) 3 Restatement of the Law 2d, Torts (1965) 126–127, Section 

552(1).

Delman v. Cleveland Heights, 41 Ohio St.3d 1, 4, 534 N.E.2d 835, 838 (1989). 

See also Westfield Ins. Co. v. HULS Am., Inc., 128 Ohio App.3d 270, 296, 714 

N.E.2d 934, 951 (1998) (the doctrine of negligent misrepresentation “provides a 

tort vehicle for recovery of economic damages that arise from the breach of a 

contractual duty, where information is negligently supplied for the guidance of 

others in their business transactions, and a foreseeable recipient of such 

information justifiably relies upon it and suffers injury as a proximate cause of the 

negligent act.” (internal quotation omitted)). 

Wilberforce argues that Plaintiff’s claim fails because: (1) there is no 

evidence that Wilberforce supplied false information; (2) there is no “special 

relationship” between Wilberforce and its prospective students or their families that 

would trigger liability; (3) Plaintiff’s reliance on the alleged statements concerning 

the enforcement of the university’s Alcohol and Drug Policy was not justified; and 

(4) Plaintiff cannot prove proximate cause between the alleged negligent 

misrepresentation and Alexandria’s death.4

4

 The Third Amended Complaint alleges that the misrepresentations resulted in 

Alexandria’s death. Doc. #38, PageID#375. In her memorandum in opposition, 

however, Plaintiff instead argues only that the misrepresentations were the 

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The Court turns first to the question of whether Wilberforce University 

supplied false information to Plaintiff concerning its enforcement of the Alcohol 

and Drug Policy. There is evidence to support a finding that Wilberforce University

did strictly enforce that policy and that students were often disciplined for 

violations. The university submitted dozens of pages of incident reports involving 

drug and alcohol use on campus. Doc. #81-1, PageID##1102-61. One student,

Larry Harten-Roy, testified that if students were caught with drugs or alcohol on 

campus, there “was definitely going to be discipline coming for sure.” Doc. #72, 

PageID##615-16. 

However, there is also ample evidence that university employees knew that 

students routinely violated the policy and simply chose to ignore the violations. 

Alana Wedderburn testified that university officials were aware of the drinking and 

smoking, but she knew of no one who was disciplined for violating the policy. 

Doc. #76, PageID##811-12. Resident assistant Jasmine Griffin testified that she 

knew that the girls had a bottle of wine in the dorm room on the night of the 

accident, but she did not report it because she is “non-confrontational” when it 

comes to her friends. Doc. #71, PageID##604-05. Student Alazia Mixon testified 

that if resident assistants found drugs or alcohol in a dorm room, they typically did 

not report it. Jacques Beasley, the front desk monitor in the dorm, typically just 

talked to the students about the violations, but did not report them. Likewise, 

“proximate cause of Plaintiff allowing Decedent to attend Wilberforce University.” 

Doc. #84, PageID##1229. 

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campus police, who were aware that students drank alcohol and smoked marijuana 

in the parking lot, simply advised the students to stay in their cars so they would 

not get caught. Doc. #74, PageID##680-82, 741-45. Larry Harten-Roy testified 

that the students “got very good at [] partying in plain sight.” The campus police 

“baby-s[a]t” the students “from a distance.” Doc. #72, PageID##619, 621. 

Jacque Beasley testified that he was aware that students drank alcohol and 

smoked marijuana in the dorm and in the parking lot, and he often had to call for 

an ambulance when a student passed out from drinking too much. Doc. #70, 

PageID##559-61. Security officer, Kevin Morris, Sr., testified that students often 

violated the policy but, unless they were being “unruly,” he would often “just talk 

to them.” He stated “[i]t wasn’t our job to be a monitor on the students. Pretty 

much, it was just we were here to keep peace, keep order. . . You’re not there to 

be a parent.” Doc. #80, PageID##980-85. 

Based on the evidence presented, a reasonable jury could find that the 

Wilberforce employee who conducted the campus tour supplied false information 

when he told Plaintiff that the university strictly enforced the Alcohol and Drug 

Policy. Nevertheless, this factual dispute is not a material one, because Plaintiff 

cannot prove other essential elements of her claim of negligent misrepresentation. 

This “business tort [] is not meant to have extensive application. . . . It has 

no application to consumer transactions or typical business transactions.” LiConrad v. Curran, 2016-Ohio-1496, ¶ 26, 50 N.E.3d 573. The great weight of 

authority indicates that a claim of negligent misrepresentation arises only in the 

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context of a special, fiduciary-type relationship between the parties, where the 

defendant “is in the business of supplying information.” Levy v. Seiber, 2016-

Ohio-68, at ¶ 37, 57 N.E.3d 331. This is typically limited to certain professionals 

such as accountants and attorneys, from whom a specific individual is seeking 

advice in connection with a specific business transaction. Id. See also Ziegler v. 

Findlay Indus., Inc., 464 F. Supp.2d 733, 738 (N.D. Ohio 2006) (a “special 

relationship” is a “core requirement” of a negligent misrepresentation claim); Ohio 

Police & Fire Pension Fund v. Standard & Poor's Fin. Servs., LLC, 813 F. Supp.2d 

871, 880 (S.D. Ohio 2011) (Graham, J.).5

 

Plaintiff has not alleged that any such “special relationship” exists between a 

college or university and its students or their parents. Ohio courts have refused to 

recognize a fiduciary relationship between a university and its students. See 

Valente v. Univ. of Dayton, 438 F. App’x 381, 387 (6th Cir. 2011) (finding no 

Ohio cases recognizing such a fiduciary relationship); Ohio Univ. Bd. of Tr. v. 

Smith, 132 Ohio App.3d 211, 219-20, 724 N.E.2d 1155, 1160 (Ohio Ct. App. 

1999) (noting lack of authority to support a finding that “there is a special or 

fiduciary relationship between an educational institution and a prospective 

student.”). Accordingly, the Court finds, as a matter of law, that Plaintiff’s 

negligent misrepresentation claim against Wilberforce is simply not viable. 

5

 But see Pacifica Loan Five, LLC v. Fifth Third Bank, No. 1:09-cv-930, 2011 WL 

13228111, at *10 (S.D. Ohio Apr. 14, 2011) (Barrett, J.) (“a special relationship 

is not a formal element of a negligent misrepresentation claim under Ohio law”). 

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Moreover, based on the evidence presented, no reasonable jury could find 

that Plaintiff justifiably relied on the statements concerning strict enforcement of 

the Alcohol and Drug Policy or the statement that Alexandria would be “safe” 

there. As discussed above, “a college is not an insurer of the safety of its 

students,” Freeman, 349 F.3d at 587, and the existence of a written policy 

prohibiting the use of drugs and alcohol on campus does not give rise to a duty to 

protect students from others who violate that policy, A.M., 2017-Ohio-8586, at 

¶49. 

There are additional reasons why no reasonable jury could find that 

Plaintiff’s reliance on these statements was reasonable. Alazia Mixon testified 

that, based on numerous Facebook posts, Plaintiff was aware that Alexandria and 

her friends were using alcohol on campus. Doc. #74, PageID##718-19. Likewise, 

Larry Harten-Roy testified that Plaintiff often conducted prayer sessions with the 

students via Facebook Messenger, and that she knew that they were drinking. 

Doc. #72, PageID#630. Plaintiff herself testified that she was aware that 

Alexandria and her friends sometimes left campus to party. Doc. #69, 

PageID#525. Plaintiff also testified that, when she visited campus for the “dawn 

dance” during Alexandria’s sophomore year, she observed alcohol bottles and 

smelled marijuana. Id. at PageID##526-27. In light of the foregoing, no 

reasonable jury could find that, in allowing Alexandria to remain at Wilberforce, 

Plaintiff justifiably relied on the statements at issue. 

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For these reasons, the Court concludes that Wilberforce is entitled to 

summary judgment on Plaintiff’s claim of negligent misrepresentation.6

(ii) Intentional Misrepresentation 

The tort of intentional misrepresentation is similar to that of negligent 

misrepresentation, but requires intent to mislead. The elements are as follows: 

(a) a representation or, where there is a duty to disclose, concealment 

of a fact,

(b) which is material to the transaction at hand,

(c) made falsely, with knowledge of its falsity, or with such utter 

disregard and recklessness as to whether it is true or false that 

knowledge may be inferred,

(d) with the intent of misleading another into relying upon it,

(e) justifiable reliance upon the representation or concealment, and

(f) a resulting injury proximately caused by the reliance.

Friedland v. Lipman (1980), 68 Ohio App.2d 255, 429 N.E.2d 456, syl. ¶ 1.

Wilberforce University argues that, because Plaintiff cannot prevail on her 

claim of negligent misrepresentation, neither can she prevail on her claim of 

intentional misrepresentation. The Court agrees. Even if she could prove that the 

alleged statements concerning the university’s strict enforcement of the Alcohol 

and Drug Policy, and the alleged assurances that Alexandria would be “safe” at 

Wilberforce, were materially false and made with the intent of misleading her into 

relying on them, the Court concludes, for the reasons discussed in the previous 

section of this Decision and Entry, that no reasonable jury could find that Plaintiff 

6

 The Court does not reach the issue of whether the alleged negligent 

misrepresentations were the proximate cause of any pecuniary loss suffered by 

Plaintiff. 

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justifiably relied on these statements. Wilberforce is, therefore, entitled to 

summary judgment on the claim of intentional misrepresentation. 

(iii) Promissory Estoppel 

Finally, Plaintiff seeks recovery under a theory of promissory estoppel. In 

order to recover under this theory under Ohio law, Plaintiff must show: ”(1) a clear 

and unambiguous promise; (2) reliance upon the promise by the promisee; (3) 

reliance by the promisee that is both reasonable and foreseeable; and (4) injury to 

the promisee as a result of the reliance.” McCarthy v. Ameritech Publ’g, Inc., 763 

F.3d 469, 487 (6th Cir. 2014) (quoting Commerce Benefits Grp., Inc. v. McKesson 

Corp., 326 F. App’x 369, 374 (6th Cir. 2009)). 

Plaintiff alleges that Wilberforce made a clear and unambiguous promise to 

strictly enforce its Alcohol and Drug Policy. However, there is no evidence that 

any such promise was made to Plaintiff or to anyone else. The university’s 

representation that it strictly enforced this policy does not suffice to satisfy this 

element of the claim. As the court held in McCarthy, "[t]he plaintiff must establish 

that the defendant made a promise rather than a mere representation. . . . The 

word ‘promise’ connotes some sort of commitment on the part of the promissor." 

Id. 

Moreover, even if Plaintiff could establish the first element of her claim, she 

cannot prove the third element. For reasons previously explained, no reasonable 

jury could find that she reasonably relied on this alleged promise. The Court 

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therefore sustains Wilberforce’s motion for summary judgment on the promissory 

estoppel claim. 

Each of the three claims set forth in Count IV of the Third Amended 

Complaint is dismissed with prejudice. 

IV. Conclusion

The Court SUSTAINS nunc pro tunc Plaintiff’s unopposed Motion for Leave

to File Excess Pages, Doc. #82. The Court SUSTAINS IN PART and OVERRULES

IN PART Defendant Wilberforce University’s Motion to Strike Affidavits, Doc. #86.

Finding no genuine issues of material fact, the Court SUSTAINS Defendant 

Wilberforce University’s Motion for Summary Judgment, Doc. #81, in its entirety, 

and DISMISSES all claims against it WITH PREJUDICE. 

Given counsels’ representation that Plaintiff has reached tentative 

settlements with each of the other Defendants, the Court VACATES the November 

2, 2020, trial date. The Court will hold a conference call on October 21, 2020, at 

4:00 p.m. to discuss the status of those pending settlements. 

Date: October 7, 2020

WALTER H. RICE

UNITED STATES DISTRICT JUDGE

(tp - per Judge Rice authorization after his 

review) 

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