# Petition for Writ of Certiorari — Salve Regina College v. Russell > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0742%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1991 - **Citation:** 499 U.S. 225 ## Text vO So ge } No. 90- ' ' rc ar ancl, JR. Sait cit nx ail In The \ eT nei Supreme Court of the United States October Term, 1989 SALVE REGINA COLLEGE, Petitioner, SHARON L. RUSSELL, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT Steven E. SNow* Partripcr, SNow & Hann One Old Stone Square Providence, Rhode Island 02903 (401) 861-8200 Counsel for Petitioner *Counsel of Record COCK'.E LAW BRIEF PRINTING CO, (00 OR CALL COLLECT (4) 342.287) ? eves} QUESTIONS PRESENTED 1. Whether a party is entitled to de novo review of a federal district judge’s determination o1 state law in a case in which federal jurisdiction is founded upon diver- sity of citizenship? 2. Whether a federal court violates the constitu- tionally mandated rule of Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), when it disregards relevant holdings of the state’s highest court and other available sources of state law and creates a novel rule of state law? 3. Whether a federal court should certify a question involving the complex relationship between a college and a student to the state’s highest court, when the state’s highest court has not yet had an opportunity to rule directly on the issue, prior to independently creating a novel rule of state law? 4. Whether a federal court can refuse to instruct a jury as to the binding effect of facts stipulated by the parties to be true, and whether the court thereafter may permit the jury to draw factual conclusions which are incompatible with the facts as stipulated? TABLE OF CONTENTS Page QUESTIONS PRESENTED .... 22. cccccscccosssnuues i TABLES OF AUTHORITIES ......ccccssccssveuenueen iii OPENSUNS GELOW. ....0e0sccceeenueunee ene 1 ek ee 8 2 STATERGENT ... 2.2... cccccennens ue ene enna 2 eS 11 REASONS FOR GRANTING THE PETITION....... 15 I. THIS COURT SHOULD RESOLVE THE CON- FLICT AMONG THE CIRCUITS AS TO WHETHER A PARTY IS ENTITLED TO A DE NOVO REVIEW OF A DISTRICT COURT'S DE- TERMINATION OF STATE LAW.............. 15 Il. IMPORTANT ISSUES OF FEDERALISM RE- QUIRE THAT THIS COURT ARTICULATE AND DEFINE THE STANDARDS TO BE USED IN ASCERTAINING STATE LAW................. 18 Ill. THE FEDERAL COURT SHOULD HAVE CERTI- FIED THE QUESTION TO THE RHODE ISLAND SUPREME COURT..............+.... 24 IV. THE CASE SHOULD BE REMANDED TO THE COURT OF APPEALS TO DETERMINE WHETHER THE FEDERAL DISTRICT COURT CAN REFUSE TO INSTRUCT A JURY AS TO ili TABLE OF AUTHORITIES Page Cases Afram Export Corporation v. Metallurgiki Halyps, ns oem wae eae quem Cie, 1965) ................ 17 Beard v. ].1. Case Co., 823 F.2d 1095 (7th Cir. 1987) .... 17 Bernhardt v. Polygraphic Company of America, Inc., I as Wiad dvd escescsccccccess 19, 20 Board of Curators, University of Missouri uv. rr 20 Burstein v. United States, 232 F.2d 19 (8th Cir. 1956) .... 26 Clayton v. Trustees of Princeton University, 608 F. ees sos escncacecceseess 15 Craig v. Lake Asbestos of Quebec, Ltd., 843 F.2d 145 Eee hoes ce cncdesesccesccuncces 16 Dennis v. Rhode Island Hospital Trust National Bank, 744 F.2d 893 (1st Cir. 1984)............ caeehecatns 15 Diggs v. Pepsi-Cola Metropolitan Bottling Co., 861 I os sows csc ccc c cess ssneee 16 Erie R.R. v. Tompkins, 304 U.S. 64 (1938)......... Passim Ferris v. Mann, 99 R.1. 630, 210 A.2d 121 (1965) ..... 22 Fidelity Union Trust Company v. Field, 311 U.S. 169 ERG oda seca sccccccccecsccsccccses 19 Griffin v. Illinois, 351 U.S. 12 (1956) ............... ine iv TABLE OF AUTHORITIES - Continued Page Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947)......... 25 Harris v. Pacific Floor Machine Manufacturing Co., oe EB TTT Tree eee 15 Jackson v. United States, 330 F.2d 679 (8th Cir. 1964), cert. denied 379 U.S. 885 (1964) ............. 26 Lumbermen’s Mutual Casualty Co. v. Elbert, 348 U.S. Se ano as nd 0a6s aabalakebacencewebasssoessces 25 Lyons v. Salve Regina College, 565 F.2d 200 (1st Cir. 1977) cert. denied 435 U.S. 971 (1978).............. 22 Matter of McLinn, 739 F.2d 1395 (9th Cir. 1984)...... 16 Meredith v. Winter Haven, 320 U.S. 328 (1943). 13, 24, 25 Mitchell v. Random House, Inc., 865 F.2d 664 (5th GR NN oe pe a i eer ras Aas on 15 National Chain Co. v. Campbell, 487 A.2d 132 (R.I. WU urasackacuhensoreuvek aon Gauwe erate, 22 Neel v. Indiana University Board of Trustees, 435 N.E.2d 607 (Ind. Ct. App. 1982) .................. 23 Olsson v. Board of Higher Education, 49 N.Y.2d 408, 402 N.E.2d 1150, 426 N.Y.S.2d 248 (1980).......... 23 Regents of the University of Michigan v. Ewing, 474 FO SE ED SF cc Kees bancivccesevereevacereceds 20 TABLE OF AUTHORITIES - Continued Rose v. Nashua Board of Education, 679 F.2d 279 (1st = Se ert Tere pindedesevdaseaneue Slaughter v. Brigham Young University, 514 F.2d 622 CRUD GN SPP ok 0G cao vncsncandancsnansodees Sofair v. State University of New York-Upstate Medt- cal Center College of Medicine, 54 A.D.2d 287, 388 N.Y.S.2d 453 (1976), reversed on other grounds, 44 N.Y.2d 475, 377 N.E.2d 730, 406 N.Y.S.2d 276 GROOT > Cid ebe cube duis sehen Csueeuabehsedindes PE ch ackae cae iicnscanweceurdeneneaenieatne West v. American Tel. & Tel. Co., 311 U.S. 223 (1940) .... STATUTES I te ERE ROL RAS AEA IR Pe ire Oe I I ooo o.s vv oie cicvcccessvebes nat at a nee POR REE NRE a No. 90- ~—. In The Supreme Court of the United States October Term, 1989 a SALVE REGINA COLLEGE; Petitioner, SHARON L. RUSSELL, Respondent. + PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT + OPINIONS BELOW The opinion of the Court of Appeals is reported at 890 F.2d 484 and is reprinted in the Appendix hereto. The opinion of the district court denying petitioner’s motion for a directed verdict is also reprinted in the Appendix. Finally, the opinion of the district court granting summa- ry judgment in favor of the petitioner on five of the eight counts of respondent’s complaint is reported at 649 F. Supp. 391 and is reprinted in the Appendix. + JURISDICTION The judgment of the court of appeals was entered on November 20, 1989. A timely Motion for Rehearing with Suggestion for Rehearing En Banc was denied on January 16, 1990, and this Petition for Writ of Certiorari was timely filed. This court’s jurisdiction is invoked under 28 U.S.C. § 1254(1). -- STATEMENT 1. Salve Regina College (“Salve Regina”) is a catho- lic co-educational college of arts and sciences sponsored by the Sisters of Mercy. It is located in Newport, Rhode Island and maintains a department of nursing which awards graduates a bachelor of science in nursing degree. 2. Respondent, Sharon Russell, a citizen of Hart- ford, Connecticut, entered Salve Regina as a freshman in the fall of 1982. Toward the end of Russell’s freshman year at Salve Regina, she sought admission to candidacy in the nursing department (161a - 171a; PE16).' She began her nursing studies as a sophomore in the fall of 1983. 3. On the first day of her sophomore year, Russel! was advised of the nursing faculty’s expectations of stu- dents (535a - 536a). At this time, Russell suffered from a serious addictive eating disorder resulting in her being extremely overweight. Russell was approximately 200 1 References in the Statement are to the Joint Appendix, Plaintiff's Exhibits (“PE”), and Defendant's Exhibits (“DE”) in the record on appeal. ee pounds overweight - a medical condition known as mor- bid obesity (298a; 415a; 485a). Persons with morbid obesity are at significant medical ris’ because of their overweightness (479a). 4. On her first day as a nursing student, Russell’s advisor had a private meeting with Russell at which time Russell's obesity was discussed. The advisor discussed some of the requirements of the program and the need for Russell to lose weight. The advisor told Russell she was concerned about Russell’s obesity, both for Russell's per- sonal health and its likely impact upon Russell’s ability to perform as a professional nurse (305a; 538a). 5. The sophomore year nursing curriculum at Salve Regina consists primarily of academic courses - in con- trast to clinical training which forms a major part of the junior and senior year nursing curriculum. Russell per- formed satisfactorily in her academic work. Nevertheless, Russell’s obesity started to interfere with her nursing training and performance during the sophomore year. For example, Russell was unable to satisfactorily complete a course in cardiopulmonary resuscitation offered at Salve Regina (191a; 316a), after she fell on the training manne- quin’s head and required the instructor’s assistance to raise herself (PE29; 1205a). Additionally, it was deter- mined that Russell had significantly understated her weight on a health data form used for making clinical training assignments for her junior year. At that time, Russell promised the college’s Clinical Agency Coordina- tor, the person in charge of assigning nursing students to clinical agencies, that she would try to lose weight before entering the clinical program (31a; 723a). Russell also signed a form in which she agreed, among other things, to “accept the decision of the Clinical Agency Coordina- tor and Department Chairman as final as to whether or not [Russell] can function in the clinical area” (196a - 197a; PE26). 6. Salve Regina’s junior year nursing curriculum included a four credit nursing theory course .nd a four credit clinical training experience. Unfortunately, instead of losing weight as she had promised, Russell had gained weight before starting her clinical training (321a). As the year progressed, the senior of Russell's two clinical in- structors came to believe that Russell’s obesity was inter- fering with her nursing practice and training (47 1a). Initially, Russell could not fit into the scrub gowns pro- vided by the hospital in which she was training (322a), thus precluding Russell from obtaining experience in the operating room (583a). In her instructor's judgment, Russell had difficulty internalizing and integrating con- cepts regarding nutrition and obesity and applying these concepts to her assigned patients (573a; 584a). 7. At the end of the fall semester of Russell's junior year, Russell was given a final clinical evaluation by the senior instructor (PE37). In that evaluation, Russell re- ceived six unsatisfactory grades and was told that, in the instructor’s view, Russell's professional performance was unsatisfactory (231a; 594a-595a). The deficiencies noted by the instructor were all, in some respect, related to Russell’s morbid obesity. 8. Salve Regina’s Department of Nursing had in effect a policy that even a single unsatisfactory grade in the clinical setting would result in a failing grade in that course, leading to dismissal from the nursing program (651a). In this case, however, the faculty was ambivalent about summarily dismissing Russell because all of Russell’s deficie:icies were related to her obesity (593a; 652a). Russell’s clinical instructor discussed the grade and available options with the department chairperson and indicated that she was willing to give Russell a passing grade if Russell would commit to losing weight.? 9. On December 18, 1984, a meeting took place be- tween Russell, the clinical instructor and the department chairperson wherein an agreement was reached under which Russell would be given a passing grade in the clinical course she had completed - thus avoiding expul- sion from the nursing program - conditioned upon Russell entering a treatment program (Weight Watchers) achieving a weight loss of 2 pounds per week, and report- ing her progress to the Clinical Agency Coordinator on a weekly basis (232a; 625a). A written contract was pre- pared which established the conditions for Russell’s con- tinuation in the nursing program. Th provided, in part: _ fs mania I understand that failure to meet an nd and all of these conditions will result in my volumtany and immediate withdrawal from the nursing pro- gram at Salve Regina College th ineligible for Nursing n> us making me (PE38, 1237a). ? Russell consistently maintained that her i physiological basis and was within her power than, har She also insisted that her obesity was not a handicap (362a) In the view of the clinical instructor, Russell's weight loss would likely improve the behaviors which concerned her (627a). ‘ a The course referred to in the contract, Nursing 411, is the clinical training component required to be taken during the (Continued on following page) 10. Russell executed the written contract (233a; 350a). Russell understood that if she could lose two pounds per week consistently, and otherwise meet the academic requirements, she would be allowed to contin- ue in the program (341a). Russell also understood that she had committed herself to withdraw voluntarily from the nursing program if she did not meet the contractual commitment (708a). 11. Asa result of entering into the contract, Russell was allowed to continue in the nursing program on a probationary status (674a; 729a). Upon entering into the contract, Russell began a weight treatment program, re- ported as required, and experienced a fluctuating weight loss which did not average two pounds per week (240a). After May, 1985, Russell failed to report regularly as she had agreed and, unfortunately, began once again to gain weight. In July, 1985, Russell was advised that the depart- ment-was disappointed in her progress and that Russell had not fulfilled the terms of the contract (260a - 261a). Russell was told that she probably would not be permit- ted to enroll in Nursing 411 (761a). 12. Russell’s net weight loss over the six month period after entering the contract was 10 pounds. Russell also had failed to report weekly to the Clinical Agency (Continued from previous page) senior year and is a prerequisite for graduating from Salve Regina with a degree in nursing. Russell's eligibility for the theory portion of the senior year curriculum, Nursing 410, was not affected by the contract (658a). Coordinator as she had promised. As a result, Russell was advised on August 21, 1985 that she had not complied with the conditions for entering Nursing 411 and that her name was being removed from the list of students eligible to enroll for that course (372a - 373a). 13. Notwithstanding the department’s action, Russell was still enrolled as a student at Salve Regina and could have qualified to graduate although Russell could not have graduated as a nurse within the normal four year time frame (795a; 764a). To have graduated from Salve Regina as a nurse, Russell would have had to establish her eligibility for entering Nursing 411, suc- cessfully complete Nursing 411, and complete the other requirements for the degree (795a). 14. Instead of filing a grievance, seeking reinstate- ment to the nursing department, or changing majors (661a), Russell transferred to St. Joseph’s College in Con- necticut (267a). Russell had to repeat her junior year at St. Joseph’s College (268a) due to that institution’s require- ment that students earn at least 60 credits in residence before graduating with a nursing degree (437a). One year after undergoing radical surgery which reduced her over- weightness by 50%, Russell successfully completed her bachelor’s degree in nursing at St. Joseph’s (156a). 15. . This litigation was commenced by Russell in September, 1985 against Salve Regina and five individu- ally named faculty members. The complaint alleged handicap discrimination in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 794, the denial of due process and unconstitutional interference with Russell's liberty and property interests, negligent and intentional infliction of emotional distress, invasion of privacy, wrongful dismiss- al, violation of implied covenants of good faith and fair dealing, and breach of contract (4a - 16a). 16. On November 17, 1986, the district court entered summary judgment in favor of defendants with respect to all of the claims save those involving intentional inflic- tion of emotional distress, invasion of privacy, and breach of contract. 649 F. Supp. 391. Since all the claims based upon federal law were dismissed, federal jurisdiction over the remaining claims was premised solely upon diversity of citizenship, 28 U.S.C. § 1332(a)(1). 17. Pursuant to the district court’s pre-trial order, the parties filed a joint statement which included 40 separate stipulations of fact agreed to by the parties (73a - 85a). 18. At the close of respondent's case-in-chief, the district court directed a verdict in favor of all the individ- ual defendants on all of the claims against them, and directed a verdict in favor of Salve Regina on the claims of intentional infliction of emotional distress and invasion of privacy (517a - 524a). The district court ruled, however, that there was a triable issue with respect to breach of contract. Although the district court rejected Russell's claims that the weight loss contract was procured by duress and lacked consideration, and held that the special agreement which established the conditions for Russell's eligibility in the nursing program was part of the overall relationship between Russell and Salve Regina (522a - 523a), the district court nevertheless stated: The basic question is whether Salve Regina Col- lege was justified in dismissing this plaintiff 9 after completion of three years, and not allow- ing her to enter her fourth year, and final year, of the nursing program, toward a degree (521a). The district court continued: In short, I think there is a legitimate question for the jury to decide as to whether the dismissal of the plaintiff in August of 1985 by Mrs. Chap- delaine, was reasonable and justified in view of the whole contractual relationship between the college and this plaintiff. In other words, it cre- ates an issue of substantial performance. . . . If the jury can say that the plaintiff substantially eee my her contractual obligations to the col- ege, then they can say she was wrongfully dis- charged, or dismissed from her course. If the jury on the other hand determines that there was = no substantial performance, viewing the overall picture, including her obligations un- der the side agreement, then the jury can deter- mine that the college justifiably dismissed her from the program (523a). 19. At the close of all of the evidence, Salve Regina renewed its motion for a directed verdict on the grounds, inter alia, that the plaintiff had admitted - as evidenced by the stipulated facts - that she had not met - nor came close to meeting - the conditions established for her continuance in the nursing program and that, as a result, Salve Regina College was entitled to judgment as a mat- ter of law. The college also urged that the “substantial performance” test was not applicable under Rhode Island law, or the law of any other state, in the unique context of the college-student relationship (814a - 817a). The district judge, while acknowledging that the Rhode Island Su- preme Court had to date limited the application of the “substantial performance” test to construction contracts, 10 and while agreeing that the doctrine of substantial perfor- mance should not apply generally in the academic con- text, nonetheless ruled that he believed that the Rhode Island Supreme Court would apply the doctrine in this case. No analysis or legal rationale for this prediction was given (820a - 822a). The court denied the motion for a directed verdict and sent the case to the jury (820a - 822a). The college seasonably objected to the charge (904a - 905a). 20. The jury returned a verdict finding the college liable in damages for breach of contract (915a). The dis- trict court denied the college’s post-trial motions for judgment notwithstanding the verdict, for a new trial, and/or remittitur (132a), after which the clerk entered judgment. 21. The court of appeals affirmed without engaging in any meaningful review of the case. Acknowledging that Rhode Island law applied to all substantive aspects of the case, the court of appeals characterized the case as one of “first impression” and noted that the district court believed that the Rhode Island Supreme Court would apply the substantial performance standard to the con- tractual relationship between a student and a college. Based upon the First Circuit’s rule of deferring to inter- pretations of state law made by federal judges sitting in that state, the court of appeals held that the district court’s determination was not “reversible error.” 890 F.2d at 489. The court of appeals also rejected petitioner's other grounds for appeal, considering it “appropriate to accord the district court reasonable leeway.” 890 F.2d at 490. ae 11 SUMMARY This case presents an opportunity for this Court to determine a number of important and potentially far- reaching issues — including fundamental questions of the allocation of power between the federal and state judici- aries which have not been addressed by this Court in some time. The district court below deemed itself free to declare and apply its own opinion of how the Rhode Island Supreme Court would view the complex relation- ship between a student and a college. Through the simple expedient of characterizing the case as one of first im- pression, the district court created a novel and highly troubling rule of state law while ignoring relevant deci- sions ©/ the Rhode Island Supreme Court, clear legal precedent from other states following a similar doctrinal approach as the Rhode Island Supreme Court, and the reasoned views of legal commentators. Although the dis- trict court dressed up its decision as a prediction of what the ae Supreme Court would likely hold if the case w fore it, no rationale nor legal analysis accom- panied the prediction. Except for the district judge’s sub- jective feelings and belief, his creation of new law for Rhode Island was totally without foundation. The district court felt that the lack of a precise precedent gave it leeway to create a new rule in the guise of a prediction. Since this Court’s holding in Erie R.R. v. Tompkins, 304 U.S. 64 (1938), it has been clear that the Constitution mandates the application of state rather than federal deci- sional law in diversity cases. In instances where the state’s highest court has made a recent ruling in an “all- fours” factual situation, the federal courts have had little 12 difficulty in applying the Erie rule. A problem of ascer- taining state law arises however, when the state’s highest court has not spoken, either recently ov at all, on the question in issue. A more serious problem arises, how- ever, when a federal judge wishes to make an indepen- dent decision and reads recent, analogous cases narrowly in order to arrive at the conclusion that the highest court has not spoken authoritatively on the question presented. The question then becomes whether the federal judge may make an independent decision on the basis of what he deems to be the right rule, or whether he must analyze other sources of state law in order to ascertain what the law of the state would be if the issue were before the state’s highest court. This Court has yet to express a definite opinion as to the process which binds a federal judge in ascertaining state law when the highest state court has not spoken to the precise question in issue. This is an important issue which goes to the heart of our federal system of govern- ment and one which should be settled by this Court. A second important issue raised by this petition which has never been directly answered by this Court is the problem of which court within the federal judicial system is charged with the ultimate responsibility for ascertaining what state law is. While the ultimate power to decide whether state law was properly applied in a diversity case undoubtedly rests with the Supreme Court, this Court has indicated its reliance on lower federal courts for the interpretation of state law. 13 But which of the lower courts? In the First Circuit, it is the district court’s construction of state law that now applies. In this case, for example, the court of appeals refused to review the district judge’s prediction of state law, deferring to the district court’s presumed expertise in the law of the state of Rhode Island. Thus, despite Salve Regina’s statutory if not constitutional right to at least one appeal, that right became largely meaningless because the district court’s interpretation of state law - even if incorrect - was not viewed as reversible error. Other circuits, most notably the Third, Sixth, Seventh, Ninth, and Tenth Circuits, take a wholly different ap- proach. In those circuits, rather than the deferential stan- dard of review to a district judge’s construction of the law of the state, which accepts that construction unless it is clearly wrong, questions of state law are reviewed by the court of appeals under the same independent de novo standard as are questions of federal law. Those circuits properly recognize that anything less than a full indepen- dent de novo review is an abdication of appellate respon- sibility and a deprivation of a party’s right to a full, considered and impartial review of the district court’s decision. This Court should resolve this conflict in the circuits, and clearly establish that the courts of appeal have the responsibility for ascertaining state law and that a de novo standard for reviewing district courts’ pronouncements of state law is mandated. Another important issue raised by this petition is the desirability of a federal court’s refraining from the exer- cise of jurisdiction in those diversity cases where it finds itself unable to ascertain accurately the law of the state involved. Although this Court ruled in Meredith v. Winter 14 Haven, 320 U.S. 328 (1943), that federal courts should accept the responsibility to decide questions of state law when necessary for the disposition of cases brought to it for decision, subsequent experience with federal district judges exercising a quasi-legislative function in the devel- opment of state law raises the question of whether princi- ples of federalism require reconsideration of the question of abstention, or at least mandatory certification to the state’s highest court for guidance, whenever state law is unclear. Finally, this case raises an important question of fed- eral procedure. For reasons known only to the district court, the district judge refused petitioner’s request to read the stipulated facts to the jury and to instruct the jury that they must treat the stipulated facts as having been proved and accept them as true (113a - 114a). The law appears to be clear that stipulations or admissions made pursuant to a pre-trial order are the equivalent of proof and prevent an independent examination by the jury with respect to the matters stipulated. Had the jury been required to accept the stipulated facts as conchisive, it could not have concluded, as it apparently did, that respondent substantially performed her obligations to the college. Although this issue was fully briefed and argued to the Court of Appeals, it was never decided. The case should be remanded to the Court of Appeals for decision on this issue. 15 REASONS FOR GRANTING THE PETITION I. THIS COURT SHOULD RESOLVE THE CONFLICT AMONG THE CIRCUITS AS TO WHETHER A PAR- TY IS ENTITLED TO A DE NOVO REVIEW OF A DISTRICT COURT’S DETERMINATION OF STATE LAW. The court of appeals did not engage in any meaning- ful review of the district court’s prediction that the Rhode Island Supreme Court would rule that a student’s sub- stantial - although not full - performance in meeting the requirements for continuing or completing an academic program is sufficient.4 The First Circuit failed to review the decision because it applies a deferential standard of review to a district judge’s construction of the law of the state in which he or she sits, accepting that construction unless it is “clearly wrong.” Dennis v. Rhode Island Hospi- tal Trust National Bank, 744 F.2d 893, 896 (1st Cir. 1984); Rose v. Nashua Board of Education, 679 F.2d 279, 281 (1st Cir. 1982).5 Thus, the First Circuit equates a district court’s determination of state law with determinations of * Despite exhaustive research, the college has found no other case in the academic or educational context in which the commercial contract doctrine of “substantial performance” has been applied. To the contrary, the only courts that appear to have considered the application of such a doctrine have re- jected it. Slaughter v. Brigham Young University, 514 F.2d 622, 627 (10th Cir. 1975); Clayton v. Trustees of Princeton University, 608 F. Supp. 413 (D.N.J. 1985). > Other circuits have similarly applied this limited stan- dard of review. See, e.g., Mitchell v. Random House, Inc., 865 F.2d 664 (Sth Cir. 1989); Harris v. Pacific Floor Machine Manufacturing Co., 856 F.2d 64 (8th Cir. 1988). 16 fact under Rule 52(a) of the Federal Rules of Civil Pro- cedure. The “clearly erroneous” standard of Rule 52, however, is based upon the trial judge’s unique oppor- tunity to judge the accuracy of witnesses’ recollections and make credibility determinations — factors that are not relevant to a conclusion of law - be it federal or state. In contrast, the Court of Appeals of the Third, Sixth, Seventh, Ninth and Tenth Circuits take a wholly different approach. In the leading case of Matter of McLinn, 739 F.2d 1395 (9th Cir. 1984), an en banc United States Court of Appeals for the Ninth Circuit concluded that district court determinations of state law pursuant to the Erie doctrine are subject to de novo review in the same manner as any other question of law. In that case, the Ninth Circuit held that anything less than full independent de novo review of state law determinations by district courts amount to an abdication of appellate responsibility. Ob- serving that every party is entitled to a “full, considered, and impartial review of the decision of the district court,” the court ruled that there is no justification for being less thorough, or for curtailing the parties’ appellate rights, simply because the law involved is state law. 739 F.2d at 1398. According to the Ninth Circuit, there is no sound reason to have a lesser appellate duty to make a correct independent determination when the question is one of state law. 739 F.2d at 1398. The Ninth Circuit’s rule of de novo review has now been followed in a number of other jurisdictions. See, e.g., Diggs v. Pepsi-Cola Metropolitan Bottling Co., 861 F.2d 914, 929 (6th Cir. 1988) (it would be an abdication of appellate responsibility to give less than de novo review); Craig v. Lake Asbestos of Quebec. Ltd., 843 F.2d 145, 148 (3rd Cir. aS et lat OE ly lg A A i al te Ad ee 17 1988) (district court’s determinations of state law subject to plenary review); Beard v. ].1. Case Co.,. 823 F.2d 1095, 1098 (7th Cir. 1987); Afram Export Corporation v. Metal- lurgiki Halyps, S.A., 772 F.2d 1358, 1370 (7th Cir. 1985). The question of the standard of review to be given to state law determinations by federal courts is an issue that ought to be decided by this Court. Our jurisprudence has developed a thesis that a person is entitled as a right to one appeal; this thesis is at least statutory if not constitu- tional in origin. Cf. 28 U.S.C. § 1291; Griffin v. Illinois, 351 U.S. 12 (1956). Since this Court’s energies must be hus- banded for resolution of issues of greater public impor- tance than determinations of state law questions, it is obvious that the only chance for appellate review will be to a court of appeals. When a court of appeals exercises its mandatory appellate jurisdiction by giving full and independent review to the decision of the district court, this Court then becomes free to conserve its discretionary powers because the parties have already been accorded full appellate review. Moreover, it would appear that the policies which are basic to the decision in Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), mandate full appellate review by the court of appeals. In Erie, this Court ruled that equal justice re- quired, to the extent possible, application of the same law to all persons regardless of their citizenship, and neutral- ization of the advantage of forum shopping. 304 U.S. at 74-78. The petitioner before the Court did not choose the federal form; it was brought to the federal forum merely by accident of respondent’s domicile. Had the case been tried before a Rhode Island trial court, the parties would have been accorded full appellate review by the Rhode 18 Island Supreme Court - the state’s highest judicial au- thority. In contrast, the federal district court in this case acted as a substitute for the entire state court system. The petitioner was not only foreclosed from a definitive rul- ing on state law; it was foreclosed from any meaningful judicial review of the district court’s speculation as to state law. The First Circuit's deference to the district court is based solely upon the latter’s purported expert knowl- edge of the law of the state in which it is located. While it is true that a district judge may be an expert in deter- mining and applying state law, a district judge is no less an expert in determining and applying federal law. There is simply no sound reason for according greater weight to the former than to the latter and for maintaining different standards of appellate review. Given that appellate judges are not encumbered, as are trial judges, by the process of hearing evidence, they are more free to concen- trate on legal questions - federal and state. If anything, the collaborative, deliberative process of appellate courts probably puts them in a better position than the district courts to decide questions of law. Il. IMPORTANT ISSUES OF FEDERALISM REQUIRE THAT THIS COURT ARTICULATE AND DEFINE THE STANDARDS TO BE USED IN ASCERTAIN- ING STATE LAW. This Court's decision in Erie R.R. v. Tompkins, 304 U.S. 64 (1938), taught that the federal courts exercising diver- sity of citizenship jurisdiction must apply state rather than federal decisional law. In so doing, the decision raised the question of how a federal judge is to ascertain eee ae 19 and apply state decisional law. As Mr. Justice Frankfurter noted in Bernhardt v. Polygraphic Company of America, Inc., 350 U.S. 198 (1956), the Erie rule makes a choice between two evils: One of the difficulties, of course, resulting from Erie R.R. Co. v. Tompkins, is that it is not always easy and sometimes difficult to ascertain what the governing state law is. The essence of the doctrine of that case is that the difficulties of ascertaining state law are fraught with less mis- chief than disregard of the basic nature of diver- sity jurisdiction, namely, the enforcement of state-created rights and state policies going to the heart of those rights. 350 U.S. at 208-09. The Erie opinion itself shed little light on the problem of ascertaining unclear state law; nevertheless, in analyz- ing the proper role of the federal judge with respect to state law, Erie provides the policies and ground rules from which standards of judicial conduct must be de- vised. In those few instances where a state’s highest court has made a ruling directly on point, there is little diffi- culty in applying the Erie rule. There is no doubt that a federal judge is bound hy the decision of an intermediate state court of state-wide jurisdiction, absent a ruling by the highest court of the state or other convincing evi- dence of state law. Fidelity Union Trust Company v. Field, 311 U.S. 169 (1940). Moreover, it is clear that a federal judge must ascertain and apply state law regardless of his or her personal belief as to its correctness. West v. Ameri- can Tel. & Tel. Co., 311 U.S. 223, 236-37 (1940). Finally, it is clear that state law arises from many sources, and a federal judge must be cognizant of all such sources in 20 making his or her determination. Bernhardt v. Polygraphic Co. of America, 350 U.S. 198, 205 (1956). What is not clear, however, are the standards for analysis that a judge must utilize to ascertain state law when an authoritative state court has not spoken to the precise question in issue - and what restrictions constrain a federal judge who wishes to create new state law and thus reads closely analogous cases narrowly in order to arrive at the conclusion that the matter is one of first impression. These issues are presented in the instant peti- tion. In this case, the district judge ruled that he was satisfied in his “own mind that if the Supreme Court of Rhode Island had this particular case to decide, the Su- preme Court of Rhode Island would say that the doctrine of substantial performance should apply, and the jury should make a determination of whether there was sub- stantial performance by the plaintiff in this case” (821a).° This conclusion was not based upon recognized sources 6 The doctrine of substantial performance is inherently unworkable in the academic context. Imagine, for example, a student who successfully completes 124 out of 128 credits required for graduation. Should a jury be permitted to con- clude that the student “substantially performed” the require- ments and, thus, is entitled to a degree? Would anyone wish to be treated by a nurse who “substantially performed,” but did not fully meet the requirements for graduation? Professional education requires subjective evaluation in non-cognitive areas like clinical performance, and the law must respect a faculties’ professional judgment as to the level of performance. Cf. Re gents of the University of Michigan v. Ewing, 474 US. 214, 225 (1985); Board of Curators, University of Missouri v. Horowitz, 435 U.S. 78 (1978). 21 of state law such as published opinions, relevant statutes, legislative history, treatises, law review articles, or other sources of law which would be examined by the state’s highest court. Rather, the determination was based upon some undefined special knowledge or feeling for Rhode Island law that the district judge presumed to have but could not articulate. Since the very act of a federal judge in deciding a case serves a declaratory function of restating, adding to, or modifying the pre-existing “body of law” of the state, there should be some well-defined standard by which a federal judge acts to predict the way in which the state’s highest court would rule. The accuracy of prediction of state court decisions by a federal judge depends upon the judge’s ability to emulate the judicial decision-making process of the state court. This, in turn, requires an exam- ination of all sources of state law and methodologies of decision making, in order to isolate those factors peculiar to the particular state’s judicial process which materially affect the outcome of litigation within a state. Moreover, the examination must include all available persuasive data including compelling inferences or logical implica- tions from other related adjudications. Anything less would be inconsistent with Erie and the principles of federalism upon which Erie is based. The danger inherent in the current lack of standards ~ the nearly unbridled power of a district court to create state law - is clearly manifested in this case. Even a cursory analysis would demonstrate that the Rhode Is- land Supreme Court has long limited the application of the doctrine of “substantial performance” to construction contract cases, where it typically arises when a builder 22 claims from the owner payment of the unpaid balance due under the contract. In such situations, it is well settled in Rhode Island that when a builder has substan- tially performed, he can recover the contract price less the amount needed by the owner to remedy the defect. National Chain Co. v. Campbell, 487 A.2d 132, 135 (R.1. 1985); Ferris v. Mann, 99 R.1. 630, 636, 210 A.2d 121, 124 (1965). The doctrine of substantial performance recog- nizes that it would be unreasonable to condition a build- er’s recovery upon strict performance where minor defects or omissions could be remedied by repair. Id. It seems highly unlikely, however, that the Rhode Island Supreme Court would apply the doctrine of sub- stantial performance to a dispute arising out of the reia- tionship between a private college ard a student. Rhode Island recognizes that the student-college relationship is unique and cannot be stuffed into one doctrinal category such as contract or associational law. While it is apparent that some elements of the law of contracts are used and should be used in the analysis of the relationship between a student and a college to provide some framework into which to put the problem, it is clear that commercial contract doctrine is not applied in all its aspects. See, e.g., Lyons v. Salve Regina College, 565 F.2d 200, 202 (1st Cir. 1977), cert. denied 435 U.S. 971 (1978) (applying Rhode Island law).” In Rhode Island, the standard applied to the ? The Lyons case is based upon the leading case from the Court of Appeals for the Tenth Circuit, Slaughter v. Brigham Young University, 514 F.2d 622 (10th Cir. 1975), cert. denied 423 U.S. 898 (1975). This interpretation of the student-university relationship has been adopted virtually universally since 1975. (Continued on following page) 23 student-college relationship is that of reasonable expecta- tion - what meaning the party making a manifestation should reasonably expect the other party to give it. /d. at 202. Despite this clear authority, the district court chose to reject the college’s proffered jury instructions which out- lined the “reasonable expectations” standard and instead espoused the prediction that the Rhode Island Supreme Court would apply the commercial contract doctrine of “substantial performance.” The district court made this prediction notwithstanding the fact that every reported case in the academic or educational context which has considered the application of the doctrine of substantial performance has rejected it.* The erroneous prediction of state law by the district court in this case - compounded by the court of appeals’ deference to the district court on issues of state law - underscores the need for this Court to clarify and restrict a federal court's ability to create state law out of whole cloth. Despite efforts to restrict diversity jurisdiction, di- versity cases still comprise a substantial portion of the (Continued from previous page) These cases adhere to the principle of avoiding mechanistic applications of contract law and afford institutional academic decision making the utmost latitude and discretion. See, e.g., Neel v. Indiana University Board of Trustees, 435 N.E.2d 607 (Ind. Ct. App. 1982); Sofair v. State University of New York — Upstate Medical Center College of Medicine, 54 A.D.2d 287, 388 N.Y.S.2d 453 (1976), reversed on other grounds, 44 N.Y.2d 475, 377 N.E.2d 730, 406 N.Y.S.2d 276 (1978); Olsson v. Board of Higher Education, 49 N.Y.2d 408, 402 N.E.2d 1150, 426 N.Y.S.2d 248 (1980). * See note 4, supra. 24 docket of the district courts. In small states such as Rhode Island, where there is only a single state appellate court, it is rare to find an authoritative state decision directly on point. As a result, in Rhode Island at least, the federal district court, as a practical matter, creates as much deci- sional state law as the state judiciary. At present, simply by characterizing the case as one of first impression, the federal court has virtual carte blanche to act as a quasi state legislature in creating new law. This state of affairs simply cannot be countenanced under the Erie doctrine’s declaration that the federal courts lack constitutional au- thority to create substantive law to be applied within the states. This Court should issue its Writ of Certiorari to establish the standards to be adhered to by district courts in ascertaining state law. lil. THE FEDERAL COURT SHOULD HAVE CERTI- FIED THE QUESTION TO THE RHODE ISLAND SUPREME COURT. Until such time as Congress sees fit to abolish diver- sity jurisdiction, this Court should consider the desir- ability of the lower federal courts abstaining from the exercise of jurisdiction in those cases, such as the case at bar, where the district court believes the matter is one of first impression in the state. This simple expedient would eliminate the federal courts’ unwarranted intrusion into the development of state law. Although this Court ruled in Meredith v. Winter Ha- ven, 320 U.S. 228, 237-38 (1943), that parties were entitled to have an adjudication of questions of state law in diver- sity cases, such a rule is not constitutionally or stat- utorally mandated. This is evidenced by the refusal of the 25 federal courts to resolve issues of domestic relations and probate matters despite the meeting of jurisdictional re- quirements. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 504 (1947). Petitioner suggests that the Court ought to recon- sider its ruling in Meredith in the interests of federalism and judicial workload.’ Another possibility which would preserve the no- tions of federalism upon which the Erie doctrine is based would be to require federal courts to certify doubtful questions of state law to the state high court for resolu- tion." Through the adoption of this practice, the court best equipped to answer state law questions could do so in a definitive manner, and the equality of treatment which the Erie rule was aimed to accomplish would be assured. This Court should issue its Writ of Certiorari to eval- uate these alternatives. % Justices Black and Jackson dissented from the Court's ruling in Meredith. Moreover, Mr. Justice Frankfurter, who joined in Mr. Chief Justice Stone’s opinion in that case, later indicated doubts about the result. See Frankfurter, J. in Lumber- men's Mutual Casualty Co. v. Elbert, 348 U.S. 48, 53 (1954). © For example, Rule 6 of the Rules of the Supreme Court of the State of Rhode Island authorizes that tribunal to answer questions of law certified to it by the Supreme Court of the United States, a Court of Appeals of the United States, or a United States District Court, when requested by the certifying court if there are involved in any proceeding before it ques- tions of Rhode Island law which may be determinative of the cause then pending in the certifying court, and as to which it appears to the certifying court there is no controlling prece- dent. 26 IV. THE CASE SHOULD BE REMANDED TO THE COURT OF APPEALS TO DETERMINE WHETH- ER THE FEDERAL DISTRICT COURT CAN RE- FUSE TO INSTRUCT A JURY AS TO THE BINDING EFFECT OF STIPULATED FACTS. Pursuant to the district court’s pre-trial order, the parties agreed to 40 separate stipulations of fact (73a - 85a). Salve Regina requested an instruction to the jury that the jury must treat the stipulated facts as having been proved and accept them as true (113a - 114a). The district court failed to give the requested charge over the college’s objection (904a). While not ruled upon by this Court, the law seems clear that stipulations or admissions made pursuant to a pre-trial order are the equivalent of proof and prevent an independent examination by the jury with respect to the matters stipulated. See, e.g., Burstein v. United States, 232 F.2d 19, 22-23 (8th Cir. 1956); Jackson v. United States, 330 F.2d 679 (8th Cir. 1964), cert. denied 379 U.S. 885 (1964); United States v. Sommers, 351 F.2d 354, 357 (10th Cir. 1965). It is unclear why the district court refused to instruct the jury that they were bound by the stipulated facts; it proffered no rationale for the action. What is clear, how- ever, is that Salve Regina was prejudiced by the jury’s failure to consider the stipulated facts as binding. Had the jury been required to accept the stipulated facts as conclusive, it would have been impossible for the jury to have concluded, as it apparently did, that respondent substantially performed her obligations to the college. While this issue was fully briefed and argued to the court of appeals, the court of appeals rendered no 27 decision on this issue. This Court should exercise its supervisory powers and remand this issue to the court of appeals for decision. —@ - CONCLUSION For the reasons stated, the Writ of Certiorari should issue to review the judgment of the United States Court of Appeals for the First Circuit. Respectfully submitted, Steven E. Snow* Partripce, Snow & Hatin One Old Stone Square Providence, Rhode Island 02903 (401) 861-8200 Counsel for Petitioner *Counsel of Record APPENDICES App. 1 APPENDIX A Sharon L. RUSSELL, Plaintiff, Appellee, Vv. SALVE REGINA COLLEGE, et als., Defendants, Appellants. Sharon L. RUSSELL, Plaintiff, Appellant, v. SALVE REGINA COLLEGE, et als., Defendants, Appellees. Nos. 89-1564, 89-1597. United States Court of Appeals, First Circuit. Heard Oct. 3, 1989. Decided Nov. 20, 1989. Steven E. Snow, with whom Partridge, Snow & Hahn, Providence, R.I., was on brief for Salve Regina College, et als. Edward T. Hogan, with whom Hogan & Hogan, East Providence, R.I., was on brief for Sharon L. Russell. Before BOWNES and TORRUELLA, Circuit Judges, and TIMBERS,” Senior Circuit Judge. TIMBERS, Circuit Judge: “Of the Second Circuit, sitting by designation. App. 2 This consolidated appeal arises from the stormy rela- tionship between Sharon L. Russell (“Russell”) and Salve Regina College of Newport, Rhode Island (“Salve Re- gina” or “the College”), which Russell attended from 1982 to 1985. The United States District Court for the District of Rhode Island, Ronald R. Lagueux, District Judge, entered a directed verdict for Salve Regina on Russell’s claims of invasion of privacy and intentional infliction of emotional distress at the close of plaintiff's case-in-chief, but allowed Russell’s breach of contract claim to go to the jury.' The jury found that Salve Regina had breached its contract with Russell by expelling her. The court entered judgment on the verdict, denying Salve Regina’s motions for judgment n.o.v. and for a new trial. The court also denied Salve Regina’s motion for remit- titur of the damages of $30,513.40 plus interest, a total of $43,903.45, that the jury awarded Russell. On appeal Russell contends that, because a reason able jury could have found invasion of privacy and inten- tional infliction of emotion distress under Rhode Island law, the district court erred in entering a directed verdict 1 This action originally was assigned to then- District Judge Bruce M. Selya. Judge Selya granted summary judgment in favor of the individual defendants on all counts and in tavor of Salve Regina on five counts of Russell's complaint: due process, handicapped discrimination, negligent infliction of emotional distress, wrongful discharge and breach of convent of good faith. Russell does not raise the granting of summary judgment as to any of these counts on appeal. Judge Selya denied summary judgment on the three claims that are the subject of this appeal. Russell v. Salve Regina College, 649 F.Supp. 391 (D.R.1.1986). App. 3 on those claims. Salve Regina contends that the judgment that it breached its contract with Russell should be re- versed because: (1) the court erred as a matter of law in its analysis of the contract between a student and the college she attended; and (2) even accepting the court's formulation, there was insufficient evidence to support the jury verdict. It also argues that the calculation of damages was incorrect as a matter of law. For the reasons set forth below, we affirm the judg- ment of the district court in all respects. We summarize only facts believed necessary to an understanding of the issues raised on appeal. By all accounts, Sharon Russell was an extremely overweight young woman. In her application for admis- sion to Salve Regina, Russell stated her weight as 280 pounds. The College apparently did not consider her condition a problem at that time, as it accepted her under an early admissions plan. From the start, Russell made it clear that her goal was admission to the College’s Nurs- ing Department. Russell completed her freshman year without signifi- cant incident and was accepted in the College’s Nursing Department starting in her sophomore year, 1983-1984. Her trauma started then.? The year began on a sour note 2 The facts recited here, which relate primarily to the distress and privacy claims that were the subject of the (Continued on following page) App. 4 when a school administrator told Russell in public that they would have trouble finding a nurse’s uniform to fit her. Later, during a class on how to make beds occupied by patients, the instructor had Russell serve as the pa- tient, reasoning aloud that if the students could make a bed occupied by Russell, who weighed over 300 pounds, they would have no problem with real patients. The same instructor used Russell in similar fashion for demonstra- tions on injections and the taking of blood pressure. The start of Russell’s junior year, 1984-85, coincides with the time school officials began to pressure her di- rectly to lose weight. In the first semester, they tried to get Russell to sign a “contract” stating that she would attend Weight Watchers and to prove it by submitting an attendance record. Russell offered to try to attend weekly, but refused to sign a written promise. Apparently, she did go to Weight Watchers regularly, but did not lose signifi- cant weight. One of Russell's clinical instructors gave her a failing grade in the first semester for reasons which, the jury found, were related to her weight rather than her performance.* According to the rules of the Nursing Department, failure in a clinical course generally entailed expulsion from the program. But school officials offered Russell a (Continued from previous page) directed verdict, must be viewed in the iight most favorable to Russell. Bennett v. Public Service Co., 542 F.2d 92 (Ist Cir 1976). 3 Significantly, Russell’s other clinical instructor that se- mester considered her performance outstanding. In addition, Russell’s academic record indicates at least satisfactory perfor- mance in all courses except the clinical one that she failed. App. 5 deal, whereby she would sign a “contract” similar to the one she rejected earlier, with the additional provision that she needed to lose at least two pounds per week to remain in good standing. The “contract” provided that the penalty for failure would be immediate withdrawal! from the program. Confronting the choice of signing the agreement or being expelled, Russell signed. Russell apparently lived up to the terms of the “con- tract” during the second semester by attending Weight Watchers weekly and submitting proof of attendance, but she failed to lose two pounds per week steadily. She was nevertheless allowed to complete her junior year. During the following summer, however, Russell did not maintain . tisfactory contact with College officials regarding her efforts, nor did she lose any additional weight. She was asked to withdrawal from the nursing program volun- tarily and she did so. She transferred to a program at another school.* Since that program had a two year resi- dency requirement, Russell had to repeat her junior year, causing her nursing education to run five years rather than the usual four. Russell completed her education successfully in 1987 and is now a registered nurse. Soon after her departure from Salve Regina, she com- menced the instant action which led to this appeal. * Although the record is unclear, it appears that the Col- lege told Russell that she would not be eligible to register for her senior year, but could apply for a change of status if she met the College’s conditions. Russell instead chose to transfer. At any rate Salve Regina does not dispute that Russell's depar- ture was not truly “voluntary”. App. 6 Subject matter jurisdiction over this case is based on diversity of citizenship. 28 U.S.C. § 1332 (1988). This Court has appellate jurisdiction pursuant to 28 USC. § 1291 (1988). The parties do not dispute that the law of Rhode Island applies to all substantive aspect of the case. We discuss first in section II of this opinion that two claims with respect to which the district court directed a verdict in favor of the College. Then in section III we discuss the contract claim which was submitted to the jury. (A) Intentional Infliction of Emotional Distress Rhode Island recognizes this tort theory. It has adopted as its standard § 46 of the Restatement (Second) of Torts (1965). Champlin v. Washington Trust Co., 478 A.2d 985 (R.1.1984). Section 46 states that: “lo]ne who by extreme at d outrageous conduct intentionally or recklessly causes severe emo- tional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.” Restatement (Second) of Torts § 46.° Rhode Island has added the requirement of at least some physical mani- festation. Curtis v. State Dep't for Children, 522 A.2d 203 (R.1.1987). Russell has alleged nausea, vomiting, 5 Russell does not allege that the administration of Salve Regina intended to harm her, but rather that they hounded her without regard to the consequences. App. 7 headaches, etc., resulting from the College's conduct. This appears to create a triable issue on the causation and harm elements of the theory. The issue on appeal, there- fore, is whether the conduct alleged is sufficiently ex- treme and outrageous. In its arguments that the conduct of its employees does not rise to the necessary threshold, the College in essence concedes a pattern of harassment, but argues that the conduct was merely discourteous and necessary to carry out its academic mission. We have no doubt that the conduct was insensitive, but to be tortious it must be “atrocious, and utterly intolerable in a civilized commu. nity.” Fudge v. Penthouse Int'l, Ltd., 840 F.2d 1012, 1021 (ist Cir.) (construing Rhode Island law and quoting Restate- ment, supra, § 46, comment d), cert. denied, 109 S.Ct. 65 (1988). Without regard to context, the College is correct; a series of insults, even if ongoing and systematic, is insuf- ficient. But the context — the relationship of the plaintiff to the defendant and the knowledge of plaintiff's special sensitivities — is a necessary element of the tort. Prosser * Regarding the latter point, the College correctly states that both the Restatement and Rhode Island law may excuse otherwise tortious conduct if taken to protect legitimate iter. ests. Champlin supra, 478 A.2d at 988; Restatement, supra, § 46, comment g. The example provided is that of a heartless land- lord exercising his privilege to evict a destitute family for nonpayment of rent. /d., comment g, illustration 14. It is un- able, however, to specify the interest served beyond “educa- tional standards”. We are unable to see what interest would be served by the petty, mean-spirited and concerted conduct m question. If anything, the interest of a college faculty and administrators should be the creation of an atmosphere of courtesy and tolerance. App. 8 and Keeton, The Law of Torts, § 12, at 64 (Sth ed. 1984). The school officials knew very quickly that Russell want- ed badly to become a nurse and that she was easily traumatized by comments about her weight; yet they harassed her continuously for almost two years.” In this context, comments by school officials about weight were doubly hurtful. Even considering the context and acknowledging this to be a close question, however, we affirm the district court’s directed verdict dismissing the claim. “Extreme and outrageous” is an amorphous standard, which is necessity varies from case to case. The College’s conduct may have been unprofessional, but we cannot say that it was so far removed from the bounds of civilization as not to comply with the test set forth in § 46. Russell's com- mendable resiliency lends support to our conclusion. (B) Invasion of Privacy In Rhode Island, this tort is purely statutory; so we refer primarily to the statute itself, especially in light of 7 Salve Regina claims that an illustration set forth in the Restatement closely parallels this case: “A is an otherwise normal girl who is a little over- weight, and is quite sensitive about it. Knowing this, B tells A that she looks like a hippopotamus. This causes A to become embarrassed and angry. She broods over the incident, and is made ill. B is not liable to A.” Restatement, supra, § 46, comment f, illustration 13. In view of the ing nature of the conduct in the instant case, as well as ae ene Salve Regina held over Russell's professional future, the comparison to an isolated remark, even one made with knowledge of special sensitivity, is disin- genuous. App. 9 the lack of case iaw interpreting the text. The relevant provision, R.I.Gen.Laws § 9-1-28.1(a)(1) (1985 Reenact- ment), covers only “physical solitude or seclusion” (em- phasis added).* The conduct at issue here does not fit easily within the scope of that language, since all of it occurred in public. The only area “invaded” was Russell's psyche. We cannot lightly predict that the Rhode Island Supreme Court would interpret the statute contrary to its literal language, in view of the statement of that Court that it will give statutory language its plain meaning absent compelling reasons to the contrary. Fruit Growers Express Co. v. Norberg, 471 A.2d 628 (R.1.1984). We there- fore affirm the district court’s directed verdict on the invasion of the privacy count. III. Russell’s breach of contract claim is the only one the district court submitted to the jury. The College does not dispute that a student-college relationship is essentially a contractual one. E.g., Lyons v. Salve Regina College, 565 F.2d 200 (1st Cir.1977), cert. denied, 435 U.S. 971 (1978). Rather, it challenges the court's jury charge regarding the terms of the contract and the duties of the parties. From the various catalogs, manuals, handbooks, etc., that form the contract between student and institution, * A separate section of Rhode Island’s Privacy Law pro- vides the “right to be secure from unreasonable publicity given to one’s private life.” R.1.Gen.Laws. § 9-1-28.1(a)(3) (1985 Reen- actment). Recovery is available, however, only if a private fact is disclosed. The only material fact here, Russell’s obesity, of course was quite public. App. 10 the district court, in its jury charge, boiled the agreement between the pariies down to one in which Russell on the one hand was required to abide by disciplinary rules, pay tuition and maintain good academic standing,’ and the College on the other hand was required to provide her with an education until graduation. The court informed the jury that the agreement was modified by the “con- tract” the parties signed during Russell's junior year. The jury was told that, if Russell “substantially performed” her side of the bargain, the College’s actions constituted a breach. The College challenges the court’s characterization of the contract. It claims the court ignored relevant provi- sions of publications from the Nursing Department; for example, those relating to the need for nurses to be models of health for their patients. These provisions, it argues, demonstrate that Russell was aware that success as a nursing student demanded more than competent performance. We hold, however, that the provisions on health speak to the duty of students to inform the Depart- ment of hidden health problems that might affect the students or their patients, and they are not a license for administrators to decide late in the game that an obese student is not a positive model of health.'° ® There is no dispute that Russell met these criteria, with the exception of the clinical course she failed because of her weight. 10 Judge Selya stated that “[clontagion was not legit- imately at issue — after all, there is not allegation of communi- cable corpulence here - nor have the defendants essayed any ~ showing that clinical work would have jeopardized Russell's own wellbeing.” Russell, supra, 649 F.Supp. at 405. App. 11 Salve Regina also challenges the application of strict commercial contract principles, e.g., that, if Russell sub- stantially performed, the College had an absolute duty to educate her."! It cites several cases which hold that col- leges, in order properly to carry out their functions, must be given more contractual leeway than commercial par- ties. E.g., Lyons, supra, 565 F.2d at 202 (dean may reject faculty recommendation to reinstate student); Slaughter v. Brigham Young Univ., 514 F.2d 622 (10th Cir.), cert. denied, 423 U.S. 898 (1975); Clayton v. Trustees of Princeton Univ., 608 FSupp. 413 (D.N.J.1985) (university must have flex- ibility to discipline cheating students). There can be no doubt that courts should be slow to intrude into the sensitive area of the student-college relationship, espe- cially in matter of curriculum and discipline. Slaughter, supra, 514 F.2d at 627 (“substantial performance” stan- dard is intolerable when it allows student to get away with “a little dishonesty”). The instant case, however, differs in a very signifi- cant respect. The College, the jury found, forced Russell into voluntary withdrawal because she was obese, and for no other reason. Even worse, it did so after admitting her to the College and later the Nursing Department with full knowledge of her weight condition. Under the cir- cumstances, the “unique” position of the College as edu- cator becomes less compelling. As a result, the reasons against applying the substantial performance standard to "! The College also argues that the jury finding of substan- tial performance is not supported by the record. We hold that the record demonstrates that the finding is not clearly erro- neous. App. 12 this aspect of the student-college relationship also be- come less compelling. Thus, Salve Regina’s contention that a court cannot use the substantial performance stan- dard to compel an institution to graduate a student mere- ly because the student has completed 124 out of 128 credits, while correct, is inapposite. The court may step in where, as here, full performance by the student has been hindered by some form of impermissible action. Slaughter, supra, 514 F.2d at 626. In this case of first impression, the district court held that the Rhode Island Supreme Court would apply the substantial performance standard to the contract in ques- tion. In view of the customary appellate deference ac- corded to interpretations of state law made by federal judges of that state, Dennis v. Rhode Island Hospital Trust Nat'l Bank, 744 F.2d 893, 896 (ist Cir.1984); O’Rourke v. Eastern Air Lines Inc., 730 F.2d 842, 847 (2d Cir.1984), we hold that the district court’s determination that the Rhode Island Supreme Court would apply standard contract principles is not reversible error. IV. Salve Regina argues that the $25,000 damages awarded to Russell (the equivalent of a year’s salary) constitutes legal error.'? It contends that she is entitled to $2,000, representing her net savings after one year of employment. We disagree. 12 The remaining damages, $5,513.40, constitute the costs incurred for Russell’s additional year in college. App. 13 Since there appears to be no case law on this precise point,'® we turn to familiar principles of contract law. The purpose of a contract remedy is to place the injured party in as good a position as it would have been in had the breach not occurred. Rhode Island Turnpike and Bridge Auth. v. Bethlehem Steel Corp., 119 R.I. 141, 379 A.2d 344, 357 (1977). Since each case turns on the specific facts at hand, we consider it appropriate to accord the district court reasonable leeway. 5 Corbin on Contracts § 992 (1964 ed.). Here, the district court’s jury charge stated specifi- cally that the proper remedy for the breach in question would be a year’s salary. We cannot say that this was incorrect as a matter of law. The contract between Salve Regina and Russell was not motivated by ecomonic con- cerns, at least on Russell’s part; yet its breach clearly damaged Russell. She lost a year of her protessional life. Under the circumstances, the salary Russell would have earned in that lost year strikes us as hardly a windfall. Moreover, the most closely analogous cases, involving damages for wrongful employment termination, hold that a plaintiff is entitled to the full salary, less any amount he was under a duty to mitigate. 5 Corbin, supra, § 1095 (collecting cases). We therefore affirm the damage award. '3 The College’s reliance on Slaughter, supra, is unavailing. The Slaughter court merely held that, because the substantial performance standard was inapplicable on the facts, it was improper to award the plaintiff the amount he would have earned had he received his doctorate earlier. 514 F.2d at 626. We are faced with the reverse situation: substantial perfor- mance in fact and proper application of the standard. App. 14 To summarize: We hold that the district court properly granted a directed verdict in favor of Salve Regina on the intention- al infliction of emotional distress and invasion of privacy counts. We affirm the judgment in favor of Russell on the breach of contract count. We also affirm the damage award on the contract count. AFFIRMED. App. 15 APPENDIX B UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND C.A. No. 85-0628 L SHARON L. RUSSELL Vv. . SALVE REGINA COLLEGE ET AL Before the Honorable Ronald R. Lagueux District Judge THE COURT: I understand the defendant's argument that the doctrine of substantial performance should not apply generally in the academic context, and generally when the issue is whether someone has complied with the code of conduct within a college or whether that person has passed or flunked a course, the doctrine of substantial performance should not apply. However, in this case, | have to determine whether the Supreme Court of Rhode Island if faced with this case would decide whether the doctrine of substantial performance would apply. | recognize that the Rhode Island cases on this subject are largely cases involving construction contracts. The very first case that I recall is Pelletier v. Massey, which is in 49 R.I. 408. That was decided in 1928, and in that case, the Supreme Court of Rhode Island pointed out that in the context of a construction contract, that a con- tractor would be entitled to an installment payment if it had substantially performed the contract, and the Court in that case, especially pointed out that the trial judge had properly charged the jury in accordance with the doctrine of substantial performance, which was an ac- cepted rule. The Court also stated that whether there was App. 16 substantial performance or not was a question of fact to be decided by the jury. There is a more recent case, | believe it’s the Ferris case, which also comes up in a construction contract milieu. Now, I have an advantage that the Court of Appeals doesn’t have, and that is I was a state trial judge for 18 and 1/2 years, and I have a feel for what the Rhode Island Supreme Court will do or won't do. As a matter of fact, | charged at least two juries on the issue of substan- tial performance in other than construction contract situa- tions, and I am satisfied in my own mind that if the Supreme Court of Rhode Island had this particular case to decide, the Supreme Court of Rhode Island would say that the doctrine of substantial performance should ap- ply, and the jury should make a determination of whether there was substantial performance by the plaintiff in this case. Therefore, the jury must make a determination of whether the dismissal of the plaintiff from the nursing program at the time in question, August 21, 1985, was wrongful or not. In other words, whether it was a breach of the college’s obligation, because if the plaintiff sub- stantially performed her agreement, all her agreements with the college, then it was a wrongful act on the part of the college to dismiss her from the nursing program, what she had bargained for. So, since I make this determination as a matte of law that I think the Supreme Court of Rhode Island would apply the doctrine of substantial performance to these facts, I therefore will submit the issue of substantial per- formance to the jury. App. 17 The defendant also claims that the plaintiff hasn't proved damages. There is ample evidence in the record from which the jury could determine damages. The meas- ure of damages in this case is a year in the life. That's what the plaintiff was deprived of, a year of her profes- sional life, and therefore, she lost the income she would have made during that year, and she incurred additional expenses for another year of college, because she had to repeat her junior year. 50 | will charge the jury along that line. And the evidence is quite clear she lost roughly $25,000 in income, because she had to repeat her junior year at St. Joseph’s, and she lost whatever it was, $3,000 that she had to pay, extra tuition that she had to pay, and other fees, to get that extra year. In other words, if she had gotten the benefit of her bargain, if the jury finds that the college was in breach of contract, the jury will find that the benefit of her bargain was that she would have had a degree in one more year from Salve Regina in nursing, and wouldn't have had to pay for an extra year of schooling, and would have had one year of income. So there is ample evidence from which the jury can deter- mine damages in this case under the benefit of the bar- gain rule. For all those reasons, defendant's motion for directed verdict is denied. App. 18 APPENDIX C Sharon L. RUSSELL, Plaintiff, Vv. SALVE REGINA COLLEGE; Catherine E. Graziano, individually and in her capacity as a faculty member and as Dean of the Salve Regina College nursing department; Joan Chapdelaine, individually and in her capacity as a faculty member and clinical agency coordinator for the nursing department at Salve Regina College; Mary Lavin, individually and in her capacity as a faculty member at Salve Regina College; Maureen Hynes, individually and in her capaci- ty as a faculty member at Salve Regina College; Barbara Dean, individually and in her capacity as a faculty member at Salve Regina College; Joann Mullaney, individually and in her capaci- ty as a faculty member at Salve Regina College; and Sheila Megley, individually and in her ca- ity as a faculty member at Salve Regina Col- - , Defendants. Civ. A. No. 85-0628-S. United States District Court, D. Rhode Island. Nov. 17, 1986. OPINION AND ORDER SELYA, District Judge. This case, brought under diversity jurisdiction, 25 U.S.C. § 1332(a),' raises a host of intriguing federal and ' Although the plaintiff has premised jurisdiction alter natively on 28 U.S.C. § 1331, her “federal question” claims necessarily march across unsteady ground. See Part IIl, post (Continued on following page) App. 19 state law questions in an exotic factual context. Briefly put, the plaintiff, Sharon Russell, a citizen and resident of East Hartford, Connecticut, was expelled from Salve Re- gina College (“Salve” or “College”) because of her un- willingness and/or inability to control an extreme chronic weight problem. She now sues for damages. The defen- dants include the College and some seven Salve officials. The identity of each individual defendant and the rela- tionship of each to the College is recounted with fidelity in the case caption, see ante, and it would be pleonastic to restate that data anew. The case turns on the scope of the College's unilateral authority to dismiss a student and on the manner in which the expulsion was effected in this instance. The plaintiff's amended complaint contains some eight distinct statements of claim. The defendants have moved for summary judgment, Fed.R.Civ.P. 56(c), as to each and all of Russell's initiatives. The matter has been plethorically briefed and vigorously argued. The applica- ble legal standard is by now firmly embedded in feder | jurisprudence; in the interests of expedition, the court merely reiterates what it said at an earlier date in Gon- salves v. Alpine Country Club,-563 F.Supp. 1283, 1285 (D.R.1.1983), aff'd, 727 F.2d 27 (ist Cir. 1984): It is well settled that summary judgment can be granted only where there is no genuine issue as to any material fact and where the movant is (Continued from previous page) But, inasmuch as Russell, on the one hand, and all of the defendants, on the second hand, are citizens of different states. and more than the requisite minimum amount is arguably in controversy, there is no authentic need to consider the plau- sibility of federal question jurisdiction. App. 20 entitled to jud as a matter of law. E v. Merrimack Vi Wood Products, Inc., 701 F.2d 985, 986 (ist Cir.1983); Hahn v. t, 523 F.2d 461, 464 (1st Cir.1975), cert. denied, 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 754 (1976); United Nu- clear Corp. v. Cannon, 553 F. . 1220, 1226 (D.R.1.1982); Milene Music, Inc. v. Gotauco, 551 F.Supp. 1288, 1292 (D.R.1.1982). In determining whether these conditions have been met, the Court must view the record in the light most favorable to the pa Soe Em- ~ Be Merrimack Valey Wo Inc., 701 at 986; John Sa & Co. (WOOL) Pty. Ltd. v. Ludlow Jute Co., 569 F.2d 696, 698 (ist Cir.1978), indu all inferences favorable to that pa Santoni v. Federal oo Insurance a or F.2d 174, 177 (ist Cir.1982); O'Neill v. Publ ishing Co., 630 F.2d 685, 686 (Ist Cir 1980). With this preface, the court proceeds to narrate the undisputed facts,? to frame the issues more precisely, and to set forth its findings and conclusions. 1. BACKGROUND Salve is a religiously affiliated college located in Newport, Rhode Island, administered by the Sisters of 2 The facts utilized by the court are drawn from the affi- davits and documentary proffers of record, and from the par- ties’ statements of material facts not in dispute. See D.R.1LLR. 12.1, the text of which has been quoted in pertinent part in Mcinnis v. Harley-Davidson Motor Co., Inc., 625 F.Supp. 945, 946-47 n. 2 (D.R.1.1986). As is required at this stage of the proceedings, the court has refrained from making credibility judgments, but has the record at face value, indulging all contradictions and inferences in the perspective most flat- tering to the plaintiff. . . App. 21 Mercy of the Roman Catholic Church. Russell was admit- ted to the College by early decision in the winter of 1981-82. She began her studies in September 1982. Russell's interest in a nursing career antedated her ma- triculation: she had applied only to colleges with nursing programs and had expressed her intention to pursue such a course of study both in her original application to Salve and in her admissions interview. She commenced her academic endeavors at the College with the avowed in- tention of gaining admittance to Salve’s program of nurs- ing education.? During her inaugural year at the College, there is rather fragile evidence that Russell sought some treat- ment for obesity. At various times during that school year, her 5°6” frame recorded weights between 306 and 315 pounds according to data on file at the College's health services unit. It is plain that, although she achieved no meaningful weight loss during her freshman year, Russell was considerably more successful as a stu- dent. Her work in liberal arts courses was adequate and her grades were respectable. Consequently, Russell was admitted to the nursing program, effective at the start of her sophomore year. She was given a copy of the “Nurs- ing Handbook” (Handbook) issued by the College, and clearly understood that the Handbook set out the require- ments for successful completion of the degree in nursing. * Though the record is less than explicit, it appears that Salve requires students to undergo a minimum of one year in a liberal arts curriculum before undertaking a nursing concentra. tion. App. 22 The fabric of Russell's aspirations began to unravel in the fall of 1983, when she entered her sophomore year (her first as a nursing student per se). The parties have presented an intricate (and sometimes conflicting) history of the interaction between the plaintiff and her sundry academic supervisors. It would serve no useful purpose at this juncture fully to recapitulate those events, or to attempt to reconcile every conflict. After all, the mecha- nism of Rule 56 does not require that there be no unre- solved questions of fact; it is sufficient if there are no genuine issues remaining as to any material facts. It suffices for the moment to say that there were myriad problems along the way: the agonizing search for uniforms and scrub gowns that would fit a woman of Russell's girth, a tendency on the part of faculty members to employ Russell in order to model hospital procedures incident to the care of obese patients; prolonged lectures and discussions about the desirability of weight loss, and so on and so forth. Indeed, the record reveals a veritable smorgasbord of verbal exchanges characterized by one side as “torment” or “humiliation” and by the other as “expressions of concern” or “forthright statements of school policy.” (It takes little imagination to decipher which litigants are wont to apply which epithets to which actions.) The court recognizes, of course, that sadism and be- nevolence - like beauty - often reside principally in the eye of the beholder. And, the court has neither the need nor the means to attempt to discern the subjective mo- tives of myriad actors on the cold, fleshless record of a Rule 56 motion. For the purposes at hand, it is enough to acknowledge that an array of such incidents occurred and App. 23 that, by the end of her sophomore year, Russell’s size had become a matter of concern for all of the parties. In her junior year, the plaintiff executed a contract (Contract) purporting to make her further participation in the College’s nursing curriculum contingent upon an av- erage weight loss of two pounds per week. The Contract was a singular sort of agreement. (It is reproduced in full as an appendix to this opinion.) Notwithstanding the signing of the Contract, Russell proved unable to meet the commitment, or even closely to approach it. Her body weight never fell appreciably below 300 pounds. Though the circumstances are complex, she seems to have made - and invariably to have broken - a series of promises in this regard. Predictably, an escalating level of tension began to characterize dealings between Russell and cer- tain of the individual defendants. The climax occurred on or about August 23, 1985 The plaintiff received a letter from the coordinator*of the nursing program, defendant Chapdelaine, advising that she had been dismissed from the nursing department and from the college. Russell’s education was concededly in- terrupted at that point (though, after a year’s hiatus, she resumed her studies in nursing at another institution). Il. STATEMENT OF THE CASE Russell’s complaint, as noted above, contains an octet of claims. Two of these supposed causes of action - Counts VI and VII - allege “federal” claims. Count V! charges the defendants with a denial of due process and an unconstitutional interference with the plaintiff's pro- tectible liberty and property interests. Count VII alleges App. 24 handicapped discrimination in derogation of 29 U.S.C. § 794. The remaining six counts implicate state law, and the parties (who agree on little else) concur that Rhode tole nd law governs in this diversity case. The state law cists possess a variety of characteristics. Two of these initia- tives are contract-based: Count | alleges nonperformance of an agreement to educate and Count II asserts breach of an implied covenant of good faith and fair dealing. Three of the remaining state law initiatives are tort-based: Counts III and VIII posit intentional and negligent inflic- tion of emotional distress, respectively; and Count IV remonstrates against a perceived invasion of Russell's privacy. Count V - which seeks redress for wrongful dismissal - is a contract/tort hybrid. It is alleged throughout that the plaintiff lost . year of prospective employment in a job which she clots to have been offered contingent upon successful completion of her nursing degree. Russell seeks compensatory oom ages for this delay and for the physical and emotional trauma which she purportedly suffered as a result of what she views as the callous, humiliating, and wrongful conduct of the several defendants. The plaintiff also prays for exemplary damages, counsel fees, and costs.‘ 4 The complaint, though amended as recently as June 1986, continues to pray for unspecified injunctive relief. This prayer seems largely academic at the moment. The plaintiff has pur- sued her studies elsewhere, see ante, and has manifested no enduring desire to obtain reinstatement in Salve’s nursing program. App. 25 The court will first address the impact of the pending Rule 56 motion on the federal law claims, and will there- after turn to a consideration of the other (state law) counts. Ill. FEDERAL CLAIMS Both of the claims which arise under federal law founder on essentially the same reefs and shoals: the College is not a “state actor,” and its nursing curriculum is not a federally funded “program or activity” within the meaning of the Rehabitation Act of 1973, 29 U.S.C. § 794. The court need not tarry overlong in putting these claims to rest. A. Due Process With respect to what the plaintiff envisions as an utter disregard for the niceties (or even the basics) of due process, the court has no need to reach the hotly-debated questions of whether Russell enjoyed any constitutionally protected interest, created by the terms of the Handbook or distilled from any other source. The fifth and four- teenth amendments to the Constitution apply only to the federal government and to the state, respectively — and derivatively, to those whose actions can fairly be attrib- uted to federal or state government. Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 2753, 73 L.Ed.2d 482 (1982); Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 156-57, 98 S.Ct. 1729, 1733, 56 L.Ed.2d 185 (1978). Even where an institution admittedly discriminates in its mem- bership policies, there is no deprivation of due process unless the action in question sufficiently implicates the App. 26 state so as to make the conduct “state action.” Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 172, 92 S.Ct. 1965, 1971, 32 L.Ed.2d 627 (1972). To be sure, if the government plays the role of en- forcer for privately originated discrimination, then the government may be forbidden to exercise its police pow- er in furtherance of the discriminatory activity. Shelley v. Kraemer, 334 U.S. 1, 18-23, 68 S.Ct. 836, 844-47, 92 L.Ed. 1161 (1948). Or when the web of interconnection between the government and private bigotry is spun tightly enough to conclude that the government agency has “in- sinuated itself into a position of interdependence” with a discriminatory actor, then the challenged conduct must be subjected to fifth or fourteenth amendment scrutiny. Burton v. Wilmington Parking Authority, 365 U.S. 715, 725, 81 S.Ct. 856, 861, 6 L.Ed.2d 45 (1961). Those maxims do not, however assist this plaintiff. The requirement of! “state action” demands more than some (modest) inter- play between the public and private sectors. Justice Rehn- quist’s caveat in Moose Lodge, supra, is particularly relevant here: The Court has never held, of course, that discrimination by an otherwise private entity would be violative of the Equal Protection Clause if the private entity receives any sort of benefit or service at all from the State, or if it is subject to state regulation in any degree what- ever. Since state-furnished services include such necessities of life as electricity, water, and police and fire protection, such a holding would ut- terly emasculate the distinction between private as distinguished from state conduct set forth in The Civil Rights Cases, supra, and adhered to in subsequent decisions. Our holdings indicate App. 27 that where the impetus for the discrimination is private, the State must have “significantly in- volved itself with invidious discriminations.” Reitman v. Mulkey, 387 U.S. 369, 380, 87 S.Ct. 1627, 1633, 18 L.Ed.2d 830 (1967), in order for the discriminatory action to fall within the am- bit of the constitutional prohibition. 407 U.S. at 173, 92 S.Ct. at 1971. The First Circuit has given further content to this standard in its decision in McGillicuddy v. Clements, 746 F.2d 76 (Ist Cir.1984). There, the court of appeals held that an accounting firm working under a contract with the state was not sufficiently connected with the govern- ment to place its conduct within the “state action” rubric. Id. at 77. McGillicuddy makes it plain that even a close relationship with government does not suffice, absent some meaningful entanglement, to invoke the rigors of due process. Under Moose Lodge and its progeny, no “state action” can be discerned here. The fact that Salve was the recip- ient of a (rather meagre) library grant is manifestly insuf- ficient to carry the weight of the assertion. The fact that the College's nursing program is, in certain respects, subject to state agency approval is likewise inadequate. In Moose Lodge, the discriminatory actor was licensed by the state, but that was not enough to impress the imprimatur of the state on the private actor’s bigotry. Id. 407 US. at 177, 92 S.Ct. at 1973. The “mere fact that a business is subject to state regulations does not by itself convert its action into that of the state for purposes of the fourteenth amendment.” Blum v. Yaretsky, 457 US. 991, 1004, 102 S.Ct. 2777, 2785, 73 L.Ed.2d 534 (1982). See also Rendell- Baker v. Kohn, 457 U.S. 830, 841, 102 S.Ct. 2764, 2771, 73 App. 28 L.Ed.2d 418 (1982); Jarrell v. Chemical Dependency Unit of Acadiana, 791 F.2d 373, 374 (Sth Cir.1983). These scraps of evidence, combined, do not turn the state action corner; and the record contains aught else. Though what little has been adduced must be construed in the light most favor- able to the plaintiff, it utterly fails to demonstrate the slightest glimmer of the requisite governmental involve- ment. Accordingly, Count VI cannot stand. B. Handicapped Discrimination In respect to the plaintiff's statement of claim under the Rehabilitation Act, 29 U.S.C. § 794, the teachings of the Supreme Court in Grove City College v. Bell, 465 US. 555, 104 S.Ct. 1211, 79 L.Ed.2d 516 (1984), are controlling. In Grove City, the Court held that a college which received federal funding only indirectly (that is, through tuition subsidies to students) was not subject in all its depart- ments to the provisions of federal antidiscrimination law. Id. at 572, 104 S.Ct. at 1220. A private institution of higher education which, like Salve, receives federal monies ex- clusively through its students, is subject to federal anti- discrimination laws only with respect to its financial aid program. Id. at 574, 104 S.Ct. at 1222. And, it is well to note that, in this case, Russell does not charge that Salve discriminated against her in respect to scholarship assis- tance or other financial aid. The plaintiff, although mouthing the empty conclu- sion that the College’s nursing curriculum is a “program or activity receiving Federal financial assistance” as re- quired by 29 U.S.C. § 794, has failed to call the court's attention to any evidentiary fact which is capable of App. 29 bearing the weight of that averment.> The law is transpar- ently clear: the Supreme Court has decided the point in Grove City and has since cited that opinion with approval in the context of the very statute at issue here. See Consolli- dated Rail Corp v. Darrone, 465 U.S. 624, 636, 104 S.Ct. 1248, 1255, 79 L.Ed.2d 568 (1984). See also Bento v. I.T.O. Corp. of Rhode Island, 599 F Supp. 731, 741-42 (D.R.1.1984). Absent proof that federal funding or financial assistance of any kind was involved in the College’s nursing pro- gram, Russell can mount no cause of action against these defendants under 29 U.S.C. § 794. That being so, the difficult issue of whether Russell’s obesity can be consid- ered to be an “impairment” (handicapping condition) within the meaning of 29 U.S.C. § 706(7)(B) need not be reached - and the court expresses no opinion thereon * > The trivial amounts of money that Salve received to administer so-called Pell Grants and a cryptic reference in a musty document to a “Veterans Administration reporting fee” are at best de minimis. In no way can either of these items - which aggregated well under $3000 - be construed to “fund” the College’s nursing program. * In passing, it can be noted that a recent case from the Fourth Circuit provides an interesting perspective on the mer- its of Russell's discrimination claim. In Forrisi v. Bowen, 794 F.2d 931 (4th Cir.1986), an ic plaintiff's handicap claim under the Rehabilitation Act of 1973 was rejected where the plaintiff testified at deposition that his fear of heights had never limited his major life activities. Jd. at 934. Sharon Russel! has testified that she does not consider herself handicapped. indeed her claim that she is well equipped to function as a nurse is central to her count in contract. See Part IV, post. The absence of the requisite federal nexus in this case obviates the need to balance Russell's denial of her handicapped status against the College’s insistence that she cannot perform (Continued on following page) App. 30 The lack of any showing of the requisite federal subsidiz- ation necessitates the grant of brevis disposition in the defendants’ favor on Count VII of the complaint. IV. STATE LAW CLAIMS Conceptually, the plaintiff's claims for wrongful dis- charge (Count V) and for the transgression of a theoreti- cal (implied) covenant of good faith and fair dealing (Count Il) are linked by common ties in the relevant caselaw. So, the court proposes to deal with these initia- tives ensemble. The same sort of approach will be taken with respect to the claims for infliction of emotional distress - intentional (Count III) and negligent (Count VIIL), respectively - which likewise lend themselves to collective scrutiny. The remaining two state law causes of action will be treated individually. A. Dismissal The plaintiff's remonstrance in Count V of the com- plaint, which apparently seeks to draw sustenance from an analogy to the employment relationship, postulates that even a collegian who has no contractual claim to a continuing place in the student body cannot be expelled without just cause. To be sure, some jurisdictions have (Continued from previous page) adequately as a nurse because of her corpulence The question of whether 4 person who has the pluck to deny her ostensible handicap may still come within the protection of the Reha bilitation Act because she is perceived by others as hand capped must be left for another day evidently created such an open-ended cause of action in favor of at-will employees who have been peremptorily dismissed from their jobs. As an ultimate matter, the plaintiff's claim teeters because of her failure to discover any Case in any jurisdiction from which it might be in- ferred that such a cause of action (if it existed at all) can - or should ~ be extended to the university/student con- text. But in this case, there is no need to speculate upon such a far-reaching extension of the at-will employment doctrine - for the underlying doctrine itself simply does not occupy a place in Rhode Island law. In the employer-employee environment, no less an authority than the Supreme Court of Rhode Island has recently spoken of the well-settled rule that “a promise to render personal services to another for an indefinite term is terminable at any time at the will of either party.” Rotondo v. Seaboard Foundry, Inc., 440 A.2d 751, 752 (R.1.1981). See also Oken v. National Chain Co., 424 A2d 234, 237 (R.1.1981). Put another way, an at-will employ- ment relationship “creates no executory obligations.” Dudzik v. Lessona Corp., 473 A.2d 762, 766 (R.1.1984). This hornbook principle has twice been accepted as an accu- rate reflection of Rhode Island law by this federal district court. Lopez 2. Bulova Watch Co., Inc., 582 F.Supp. 755, 767 n. 19 (D.R.1.1984) Gelya, J.); Brainard v. Imperial Manufac- turing Co., 571 FSupp. 37, 39 (D.R.1.1983) (Pettine. }.). Se, by logical extrapolation, Count V stands upon too un- steady a legal footing to survive the instant summary judgment motion It would seem that this reasoning and collocation of the authorities writs “finis” as well to the charge contain ed in Count I! of the complaint. After all, the claim that App. 32 the defendants have breached implied covenants of good faith and fair dealing in the course of terminating the relationship between Russell and the College relies large- ly on caselaw from other jurisdictions in (he employer/ employee context, and that authority is of no conse- quence in Rhode Island. See ante. Yet, the claimant re- sponds, this count is sustainable by reference to the decision of the state supreme court in AAA Pool Service & Supply, Inc. v. Aetna Casualty & Surety Co., 121 R.1. 96, 395 A.2d 724 (R.1.1978). The AAA Pool decision is, however, a fetid sinkhole for this plaintiff. In that case, the Rhode Island Supreme Court held that the supposed existence of an implied covenent of good faith and fair dealing did not give rise to any independent cause of action in the property insur- ance nites. Id. at 726.7 Although the AAA Pool tribunal affirmed the state supreme court's earlier recognition of a generalized duty of fair dealing in contractual relation- ships, espoused in Ide Farm & Stable, Inc. v. Cardi, 110 RI. 735, 297 A.2d 6443, 645 (R.1. 1972), that generic duty was deemed inadequate to form the basis for an independent ? Some state courts, including Rhode Island's, have cre of action of this genre in the insurance context Ser ee ae v. Hanover Ins. Co., 417 A.2d 313 (R.1.1980), Gruen berg v. Aetna Ins. Co., 9 Cal. 3d 566, 108 Cal Rptr. 480, 510 Pd 1032 (1973). And, the Bibeault rule has been codified by statute See R.1.Gen.Laws § 9-1-3933. Bibeault, by its terms, opens no doors outside of the insurance industry 417 A2d at 318-19 Likewise, the statute has no application whatever beyond the insurer/insured relationship App. 33 cause of action in tort in AAA Pool. It is similarly unavail- ing on the facts of the instant case. A close look at ide Farm is revealing. There, the state supreme court discerned “an implied covenent of good faith and fair dealing between parties to a (purchase and sale) contract so that contractual objectives may be achieved.” Id. at 645 (emphasis supplied). The plaintiff in Ide Farm sought only to recover the benefit of a bargain foregone when the defendant/buyer failed to meet obligations which had arisen under a purchase and sale agreement. Id. at 643. Ide Farm did no more than acknowledge the existence of an action in contract for expectation damages against a party who failed to use best efforts to fulfill a promise. Nothing in the case suggests (or condones) the creation of an independent cause of action sounding in tort for consequential damages. The sole thrust of the opinion is toward the achievement of contractual objec. tives, not toward the establishment of a separate cause of action for punitive or consequential damages for tortious bad faith. Accordingly, Ide Farm is barren soil for the present plaintiff. As mentioned earlier, Rhode Island has consistently rejected the notion that, without more, an action lies in favor of an at-will employee for an unfair or bad faith breach of some covenant implied by law. See Rotondo, supra; Oken, supra. See also Lopez, supra; Brainard, supra Where, as here, the plaintiff was a college student rather than an employee, there is even less reason to believe that the state courts would afford her a right of action of the type which she asserts in Count Il of her complaint. In the absence of any respectable precedent from the courts of Rhode Island favorable to the plaintiff's stance, and in an App. 34 ambience where no court has intruded into the groves of Academe to reach so ambitious a result, this court cannot retailor state law to suit the plaintiff's specifications. After all, “{iJt is not for this court, sitting in diversity jurisdiction, to blaze a new trail where the footprints of the state courts point conspicuously in a contrary direc- tion.” Plummer v. Abbott Laboratories, 568 F.Supp. 920, 927 (D.R.1.1983). There is, under Rhode Island law, no independently actionable covenent of good faith or fais dealing implicit in the university/student relationship. And, Russell has shown nothing which would enhance her case so as to extricate it from the operation of this general principle The defendants’ Rule 56 motion for summary judgment has merit insofar as it pertains to Count Il, and must be granted. B. Emotional Distress Counts III and VIII of the plaintiff's complaint dwell in the realm of emotional distress, the former alleging intentional infliction and the latter claiming injury in consequence of the defendants’ negligence. The court need pause only briefly in its consideration of Count VII. Rhode Island law controls in this diversity case; and the state supreme court, in Champlin v. Washing: ton Trust Co., 478 A.2d 985, 988 (R.1.1984), has expressly rejected the viability of any cause of action for negligent infliction of emotional distress fashioned along the lines set out in § 313 of the Restatement (Second) Torts. Rhode island has been slow to expand the horizons of the (nar rowly-defined) cause of action for negligent infliction of App. 35 emotional harm, see Plummer v. Abbott Laboratories, 568 F.Supp. at 922-27 (collecting cases), and Count VIII repre- sents far too ambitious an initiative, given the current state of Rhode Island law. A federal court, of course, “must take state law as it exists: not as it might conceiva- bly be, some day; nor even as it should be... . Plaintiffs who seek out a federal forum in a diversity action should anticipate no more.” Id. at 927. The early demise of Count VIII does not necessarily sound a death knell for Count III, as the claim asserted therein rests on a different legal footing. In attempting to invoke the standard of the Restatement (Second) Torts § 46, Count III tracks a path which is theoretically viable Indeed, the state supreme court has heretofore recog: nized the existence of a cause of action patterned after § 46. See Champlin, 478 A.2d at 988. The basic requisites of an intentional infliction claim are easily stated: One who by extreme and outrageous conduct intentionally or rec causes severe emo- tional distress to another is to liability for such emotional distress, and harm to the other results from it, for harms Restatement (Second) of Torts § 46 ( Before addressing any questions duct alleged and its supposed effects, the must first determine whether the university / relationship comprises the kind of soil in which the seeds of a § 46 claim for emotional harm may sprout. We start, again, with Champlin, which recognized a cause of action for intentional infliction of emotional distress in the debtor to the con- App. 36 creditor context. id at 989. Any belief that Champlin might be limited to its own facts, or to the collection miheu, has been dispelled by the ensuing decision in Flias ». Youngken, 493 A.2d 158 (R.1.1985). Elias held that some rather unpleasant communications between an distress (though the particular conduct alleged in Elias did not meet the rigorous standard of § 46). id. at 163-64. The state supreme court again assumed the existence of this particular cause of action without inquiry into its jurisprudential antecedents or conceptual underpinnings. and considtred only the “threshold of conduct.” 493 A 2d at 164, at which liability might be imposed. id. at 163-64 Though Elias is sparse of phrase, both its language and tenor buttress a broad reading and application of Cham- plin. By extending the potential reach of the tort to the supervisor/employee relationship, Elias enhances the (al- ready bright) prospect of construing the scope of § 46 so as to embrace other (kindred) airings. The caselaw from other jurisdictions does not sugpest any basis for insulating the university /student setting from the operation of the general rule. See Note. 38 A.L.R.4th 998, 1003-1030 (1985) (reviewing cases). With- out reaching the question of whether Rhode Island would limit the bounds of this tort to some particular sets of relationships, this court is persuaded that the uniquely vulnerable nature of the student's standing in the world of the university places that pairing squarely within the Category of relationships which, on any reasonable tax. onymy, would give rise to a duty to avoid the intentional! infliction of emotions! harm App. 37 Such a conclusion marks only the beginning of the odyssey. While Elias as Champlin together imply a cause of action for intentional infliction of emotional distress, generally applicable in the circumstances of this case, there are high hurdles along the road to success on such claims. First, the concept of what might be termed “inten- tionality” is required to do double duty in these precincts. The interdicted conduct itself must be “intentional,” that is, purposeful, wilful, or wanton. What is more, the harm that results must also be “intentional,” that is, it must have been intended or least recklessly caused. The face side of the coin is undoubtedly legible in tnis case. The conduct which the defendants undertook was volitional; what was done, was done purposefully. Whether or not the defendants intended the conse- quences that ensued, the acts that they committed vis- a-vis Russell were, without exception, the products of forethought and the conscious exercise of free will. The flip side of the § 46 coin is much harder to read. In the Champlin phrase, the challenged conduct “must be intentional or in reckless disregard of the probability of causing emotional distress.” 478 A.2d at 989. The plaintiff does not argue that these defendants desired to cause her to suffer, or even that they knew such suffering was substantially certain to follow from their course of con- duct. Rather, Russell contends that the concept of reck- lessness is subsumed within the concept of intentionality for these purposes. Prosser and Keeton weigh in on plain- tiff’s side of this issue: [L]iability for extreme outrage is broader [than a literal interpretation of intentionality would al- low] and extends to situations in which there is App. 38 no certainty, but merely a high degree of proba- bility that the mental distress will follow, and the defendant goes ahead in conscious disregard of it. This is the type of conduct which common- ly is called wilful or wanton, or reckless. Prosser and Keeton, The Law of Torts (Sth ed. 1984) § 12 at 64 (discussing the requirement of extreme outrage). There are four elements which must coincide under Rhode Island law to impose liability on such a theory (1) the conduct must be intentional or in reck- less disregard of the probability of causing emo- tional distress, (2) the conduct must be extreme and outrageous, (3) there must be a causal con nection between the wrongful conduct and the emotional distress, and (4) the emotional dis- tress in question must be severe. Champlin, 478 A.2d at 989. Points (3) and (4) are of only passing interest at this juncture. The plaintiff has testified that she suffered nightmares, sleeplessness, nausea, vomiting, diarrhea, gastric upset, and hypoglycemic attacks in the wake of the defendants’ conduct. There is ample evidence in the record to withstand Rule 56 scrutiny on the last two prongs of the Champlin test. And, the first two prongs can, for the purposes at hand, be viewed as susceptible to measurement by a merged yardstick. reckless disregard cum outrageousness. The question becomes whether or not Russell has proffered enough in the way of proof to create a genuine issue of material fact as to this criterion The combined standard is a stringent one. The oft cited comment (d) to § 46 of the Restatement (Second) of Torts (1965) provides: — App. 39 It has not been enough that t has acted with an intent’ which oyna even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by “malice,” or a degree of aggravation which would entitle the plaintiff to a damages for another tort. Liability has found only where the conduct has been so outrageous in character, and so extreme in de- gree, as to go beyond all possible bounds of ecency, and to be regarded as atrocious, and utterly intolerable in a civilized community Generally, the case is one in which the recitation of the facts to an average member of the com- munity would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!” Whether the conduct of a given defendant surpasses the bounds of decency is a function of three factors: (i) the conduct itself, (ii) in light of the particular relation. ship of the parties, (iii) having in mind the known (or knowable) susceptibility of the aggrieved party to emo- tional injury. These can best be assayed, in this case, in the inverse order of their appearance. Russell wee a known quantity. Despite her evident sensitivity to weight-related emotional trauma, and her documented history of precarious emotional balance and tenuous self- esteem, the individual defendants - well-educated pro- fessionals all - plowed ahead. Given the full panoply of the circumstances, the proposition that they acted in reck- less disregard of the probability that an obese youngster ’s psychic equilibrium could easily be knocked askew soome fairly debatable. This conclusion is fortified by a glimpse of the middle factor. The student stands in a parti “nn vulnerable relationship vis-a-vis the university, be ad ministration, and the faculty. She is away from home App. 40 subject to the authority and discipline of the institution, and under enormous pressure to succeed. The relation- ship of these parties was such that the defendants could fairly be expected to have acted maturely - and even with some tenderness and solicitude - toward the plaintiff. Seen in this context, the defendants’ conduct, as the plaintiff has portrayed it, cannot be said as a matter of law to stumble on the threshold of outrageousness. To be sure, the law does not shield a person from words or deeds which are merely inconsiderate, insulting, unflat- tering, or unkind. The courts possess no roving writ which warrants intervention whenever someone's feel- ings are hurt or someone has been subjected to a series of petty indignities. And, there must be room for some lack of courtesy and finesse in interpersonal relations. In Champlin, tor example, the state court ultimately declined to impose liability because of the need to afford a creditor “reasonable latitude in the manner in which it seeks to collect overdue notes, even though there may be times when these methods might cause some inconvenience or embarrassment to the debtor.” Champlin, 478 A.2d at 989-90. Yet, the behavior challenged here, viewed in the light most favorable to the plaintiff's case, seems to be shaped of sterner stuff. Although a private college must be af- forded wide discretion in enforcing its scholastic stan- dards and in disciplining its students, there is no justification for debasement, harassment, or humiliation The academic mise en scene, in any reasoned view, is considerably more civilized than the debtor-creditor envi ronment, and there is correspondingly less play for App. 41 roughness.* Given the trust implicit in the student's selec- tion of a college, and the peculiar vulnerability of under- graduates, the facts set forth by the plaintiff, if ultimately proven, comprise a scenario which is far more con- science-provoking than the Champlin counterpart. The in- dignities which Russell asserts have been practiced on her are arguably offensive in the extreme, perhaps repug- nant to the norms which one would expect to flourish in the academic world. Taken from the plaintiff’s coign of vantage, the behavior in question, if it is shown to be as obnoxious as the plaintiff in her Rule 56 Opposition sug- gests, might well be thought by a properly-instructed jury to be so atrocious as to be actionable. As a general matter, the plaintiff appears to have raised sufficient doubt as to the quality of the defendants’ actions to blunt the summary judgment ax. See Cortes Quinones v. Jimenez Nettleship, 773 F.2d 10, 15 (1st Cir.1985) (per curiam) (summary judgment inappropriate where the parties “have raised sufficient unanswered questions to require [the] case to go forward with more complete develop- ment of the facts.”).% * The relationship among students - as opposed to that between the institution and the student body - is a different kettle of fish, not on today’s menu. * In pressing their motion for summary judgment as to Count Il, the defendants have painted with the broadest imag. inable stroke. Their asserted position is that Russell has not made out a claim against any defendant. The court has now held to the contrary. See text ante. The next logical question whether, given the overall viability of the claim, any one or more of the defendants nevertheless deserves immunity be cause of the absence of evidence of individual culpability — has (Continued on following page) App. 42 C. Right to Privacy Count IV of the complaint posits a supposed invasion of Russell's privacy. No such cause of action was recog- nized at common law in Rhode Island. See Champlin, 478 A.2d 988 n. 2. The General Assembly, however, filled this perceived void in 1980 by the enactment of a statute which is now codified at R.l.Gen.Laws § 9-1-28.1 (1985 Reenactment) (Privacy Act). The Privacy Act,"° which (Continued from previous page) not been addressed by the movants, and the court will not gratuitously fill the void. Cf. Blue Cross of Rhode Island »v. Cannon, 589 F.Supp. 1483, 1494 n. 15 (D.R.1.1984) (though mo- tion to dismiss a single count of a complaint has been granted on a ground which probably undercuts certain other counts as well, court will not act sua sponte, but will await the filing of properly-focused motions). Thus, it is not necessary at this juncture to scan the record so as to assess each defendant's contribution (or lack thereof) to the miseries which Russell laments. © The Privacy Act declares in pertinent part: (a) Right to Privacy Created. ~ It is the policy of this state that every person in this state shall have a right to privacy which shall be defined to include any of the following rights individually: (1) The right to be secure from unreasonable intrusion upon one’s physical solitude or seclusion: (A) In order to recover for violation of this right, it must be established that (i) It was an invasion of something that is enti tled to be private or would be expected to be private. (i) Such invasion was or is offensive or objec: honable to a reasonable man, although, (Continued on following page) App. 43 established a “right to be secure from unreasonable intru- sion upon one’s physical solitude or seclusion,” Id. at § 9-1-28.1(a)(1), must necessarily inform this court's de- termination of the motion sub judice insofar as the fourth count of the complaint is concerned. to interpret this neoteric Statutory right. The state (Continued from previous page) (B) The person who discloses such information need not benefit from such disclosure. (3) The right to be secure from unreasonable publicity given to one’s Private life: _ (A) In order to recover for violation of this right, it must be established that- pe (i) There has been some publication of a private (1) The fact which has been made public must be one which would be offensive or objectionable to a reasonable man of ordinary sensibilities, (B) The fact which has been disclosed need not be of any benefit to the discloser of such fact (b) Right of Action. - Every person who subjects or Causes to be subjected any citizen of this state or other person within the jurisdiction thereof to a de- privation and/or violation of his right to privacy shall be liable to the party injured in an action at law, Suit in equity or any other appropriate proceedings tor redress RI. Gen Laws § 91.28 anh) (78s Reenactment) App. 44 supreme court, in a rather cryptic footnote in Champlin, 478 A.2d at 988 n. 2, wrote that Ms. Champlin’s claim for invasion of privacy was moot because to “establish| | a violation of her right of privacy, [the plaintiff] would have had to satisfy the requirements of § 46” of the Restatement (Second) of Torts (1965). On the facts of Champlin, the court seemed to say, the cause of action at common law for intentional infliction of emotional dis- tress merged, as a practical matter, with the statutory claim for invasion of privacy. In support of this proposi- tion, the Champlin court cited Dawson v. Associates Finan- cial Services Co. of Kansas, Inc., 215 Kan. 814, 820, 529 P.2d 104, 110 (1974). To be sure, Dawson - which, like Cham- plin, was a debtor-creditor case — did treat the two causes of action interchangeably and held that the stringent standard of liability for intentional infliction of psychic harm should govern the merged claims. In so doing, however, the Kansas Supreme Court relied heavily on the nature of debtor-creditor intercourse: When one accepts credit, the debtor impliedly consents for the creditor to take reasonable steps to pursue payment even though it may result in actual, though not actionable, invasion of priva- cy. . . . [D]ebtors’ tender sensibilities are pro- tected only from appressive, outrageous conduct. Id. at 820-21, 529 P.2d at 110. The Dawson court made it clear that the right of privacy is normally governed by the more relaxed stan- dard of liability that requires a finding of conduct “highly offensive to a reasonable man.” Id. at 822, 529 P.2d at 111. By its allusion to Dawson in the Champlin footnote, there- fore, it would seem that the Rhode Island Supreme Court App. 45 placed a Restatement § 46 gloss on rights afforded by the Privacy Act only in the (predictably) rough-and-ready precincts in which the relationship of debtor and creditor holds sway. See McMenamin v. Bishops, 6 Wash.App. 455, 493 P.2d 1016 (1972); Lewis v. Physicians, Etc. Bureau, 27 Wash.2d 267, 177 P.2d 896 (1947); Norris v. Maskin Stores, Inc., 272 Ala. 174, 132 So.2d 321 (1961). Yet, the case at bar arises in a far different - and more urbane - sort of institutional context, one which conduces toward reading R.I.Gen.Laws § 9-1-28.1(a)(1) exactly as it was written, thereby providing a remedy for “unreasonable intrusion upon one’s physical solitude or seclusion (that). . . . was or is offensive or objectionable to a reasonable man.” Id. The relationship is such that Russell could reasonably h [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0742%3A2. Public record. Not legal advice.