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Ross v. Creighton University

United States Court of Appeals for the Seventh Circuit

March 6, 1991, Argued ; March 2, 1992, Decided

No. 90-2509

Opinion

 [*411]  RIPPLE, Circuit Judge. Kevin Ross filed suit against Creighton University (Creighton or the University) for negligence and breach of contract arising from Creighton's alleged failure to educate him. The district court dismissed Mr. Ross' complaint for failure to state a claim. For the following reasons we affirm in part and reverse in part the judgment of the district court.

 [**2]  BACKGROUND

A. Facts

] When reviewing the grant of a motion to dismiss, we assume the truth of all well-pleaded factual allegations and make all reasonable inferences in favor of the plaintiff. Webster v. New Lenox School Dist. No. 122, 917 F.2d 1004, 1005 (7th Cir. 1990). Mr. Ross' complaint reveals the following story.

In the spring of 1978, Mr. Ross was a promising senior basketball player at Wyandotte High School in Kansas City, Kansas. Sometime during his senior year in high school, he accepted an athletic scholarship to attend Creighton and to play on its varsity basketball team.

Creighton is an academically superior university. Mr. Ross comes from an academically disadvantaged background. At the time of his enrollment at Creighton, Mr. Ross was at an academic level far below that of the average Creighton student. For example, he scored in the bottom fifth percentile of college-bound seniors taking the American College Test, while the average freshman admitted to Creighton with him scored in the upper twenty-seven percent. According to the complaint, Creighton realized Mr. Ross' academic limitations when it admitted him, and, to induce him to attend and [**3]  play basketball, Creighton assured Mr. Ross that he would receive sufficient tutoring so that he "would receive a meaningful education while at CREIGHTON." R.44 at Count I, P 10.

 [*412]  Mr. Ross attended Creighton from 1978 until 1982. During that time he maintained a D average and acquired 96 of the 128 credits needed to graduate. However, many of these credits were in courses such as Marksmanship and Theory of Basketball, and did not count towards a university degree. Mr. Ross alleges that he took these courses on the advice of Creighton's Athletic Department, and that the department also employed a secretary to read his assignments and prepare and type his papers. Mr. Ross also asserts that Creighton failed to provide him with sufficient and competent tutoring that it had promised.

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957 F.2d 410 *; 1992 U.S. App. LEXIS 3038 **

KEVIN ROSS, Plaintiff-Appellant, v. CREIGHTON UNIVERSITY, Defendant-Appellee.

Prior History:  [**1]  Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 89 C 6463--John A. Nordberg, Judge.

Disposition: AFFIRMED in part, REVERSED in part and REMANDED

CORE TERMS

malpractice, promise, district court, alleges, cause of action, courts, tutoring, breached, contractual, schools, negligent infliction of emotional distress, basketball, admitting, attend, contract action, contract claim, enrolled

Civil Procedure, Appeals, Standards of Review, General Overview, Responses, Defenses, Demurrers & Objections, Motions to Dismiss, Preliminary Considerations, Federal & State Interrelationships, Erie Doctrine, Motions to Dismiss, Failure to State Claim, Dismissal, Involuntary Dismissals, Failure to State Claims, De Novo Review, Governments, Courts, Judicial Precedent, Education Law, Civil Liability, Educational Malpractice, Torts, Types of Negligence Actions, Negligent Infliction of Emotional Distress, Elements, Potential Plaintiffs, Elements, Duty, Business & Corporate Compliance, Contract Formation, Contracts Law, Contract Formation, Contracts Law, Breach, Breach of Contract Actions, Departments of Education, US Department of Education, US Department of Education Authority, Faculty & Staff, Employment Contracts, Freedom of Speech, Freedom to Learn, Academic Instruction, Extracurricular Activities, Student Publications, Labor & Employment Law, Conditions & Terms, Duration of Employment, Fixed Term, Employment Contracts