(1st Dist. 1986), appeal denied, 114 Ill.2d 544, 508 N.E.2d 726 (1987). To that extent Koeller conflicts with Corgan.
The Court need not reconcile these cases in order to conclude that Ross has no claim for negligent infliction of emotional distress. (Nor need it consider the abstruse question of whether a person standing in a zone of physical danger is as much a "direct victim" of negligence as the person physically harmed by negligence. See Courtney, 500 N.E.2d at 707.) The furthest the Illinois courts have reached to permit recovery for negligent infliction of emotional distress is the situation presented in Corgan, where the victim of a recognized tort of malpractice seeks recovery for emotional distress as part of a claim for damages. But Ross has no action against Creighton for malpractice, and thus does not fall within the rule of Corgan. And because he cannot allege that he was physically injured or stood in a zone of physical danger, he does not fall within the rules of Rickey and McAdams. In other words, Ross's claim contains none of the various circumstantial guarantees of genuineness that the Illinois courts have insisted upon as a precondition to recovery. The Court thus concludes that he has failed to state a claim for negligent infliction of emotional distress.
So Ross has neither a claim for educational malpractice nor a claim for negligent infliction of emotional distress. But does he nonetheless have a cause of action that is sui generis? Ross argues that he does, contending that "the present case is so unique and egregious that, despite the lack of precedent, a cause of action should be found to exist." Plaintiff's Response, at 8. Ross basically argues that a special tort be created for the benefit of student athletes, or more precisely, for the benefit of student athletes whose academic performance would not have qualified them to be students had they not been athletes. In Ross's view, "The present case does not question classroom methodology or the competence of instruction. Rather the issue is whether Plaintiff should ever have been admitted to CREIGHTON and whether, once admitted, CREIGHTON had a duty to truly educate Plaintiff and not simply to maintain his eligibility for basketball. . . ." Id. at 10.
Ross's inability to plead a cause of action under existing law strongly counsels against creating a new cause of action in his favor. Rules serve little purpose if they are not reasonably predictable and if they do not apply across the board, for one cannot conform behavior to the unknowable. See A. Scalia, The Rule of Law as a Law of Rules, 56 U.Chi.L.Rev. 1175, 1178-79 (1989). Even a new rule declared through the evolutionary process of the common law ought fairly be deduced from existing doctrine -- something that cannot be said for Ross's claim. The policy reasons considered by the Illinois courts further counsel against recognition of this new duty. Schools would be forced to undertake the delphic science of diagnosing the mental condition of potential recruits. And why should the cause of action be limited to student athletes? Shouldn't all students who actually pay tuition also have an equal right to recover if they are negligently admitted, and once negligently admitted, have a right to recover if the school negligently counsels and educates them?
To allow Ross to recover might redress a wrong (assuming, for sake of argument, that he was in fact exploited), but it would also endanger the admissions prospects of thousands of marginal students, as schools scrambled to factor into their admissions calculations whether a potentially "negligent admission" now could cost unforeseeable tort damages later. The Court should not and will not craft a new tort for Ross.
Ross's Contract Claims
Ross's contract claims present a different problem. As an abstract matter, the relationship between university and student is at least in part contractual. See Carr v. St. John's University, 17 A.D.2d 632, 231 N.Y.S.2d 410 (1962), aff'd without opinion, 12 N.Y.2d 802, 235 N.Y.S.2d 834, 187 N.E.2d 18 (1962). As one court has noted, "If . . . a private school were simply to accept a student's tuition and thereafter provide no educational services, an action for breach of contract might lie." Paladino v. Adelphi University, 89 A.D.2d 85, 454 N.Y.S.2d 868, 873 (1982). And certainly a scholarship athlete, who provides athletic services in exchange for tuition and expenses, is just as much a party to a contract with his university as the tuition-paying student. Cf. Taylor v. Wake Forest University, 16 N.C. App. 117, 191 S.E.2d 379, cert. denied, 282 N.C. 307, 192 S.E.2d 197 (1972).
But how far the duties under a contract of education can be enforced in the courts is another matter. New York's courts, for example, have reasoned that the policies forbidding the tort of educational malpractice likewise forbid a breach of contract claim based upon allegedly inferior instruction. Torres v. Little Flower Children's Services, 64 N.Y.2d 119, 485 N.Y.S.2d 15, 19, 474 N.E.2d 223 (1984), cert. denied, 474 U.S. 864, 88 L. Ed. 2d 150, 106 S. Ct. 181 (1985); Paladino, 454 N.Y.S.2d at 872-73. This reasoning appears irresistible; otherwise, any educational malpractice claim could be repleaded as a contract claim in order to circumvent the rule against tort recovery. The Court thus concludes that the quality of Creighton's instruction of Ross cannot be attacked on contractual grounds.
This does not mean that a school could not be held liable if it breached a specific contractual promise. See Torres, 485 N.Y.S.2d at 19 ("For instance, a designated number of hours of instruction"). Ross argues that Creighton did breach several specific promises by failing to provide "adequate and competent tutoring services," failing "to require plaintiff to attend tutoring sessions," failing "to afford the plaintiff a reasonable opportunity to take full advantage of tutoring services," and refusing to allow plaintiff to "red shirt," that is, to sit out a year of basketball to concentrate on school. Amended Complaint para. 28. None of these claims, however, could constitute a breach of contract cognizable at law. Ross does not allege that Creighton failed to provide tutoring, but rather that the tutoring wasn't good enough; as discussed above, claims based upon educational quality cannot be enforced through a lawsuit. For similar reasons, Ross's claim that Creighton did not afford him "reasonable opportunity to take full advantage of tutoring services" cannot support recovery. Ross's claim that Creighton should have forced him to attend tutoring sessions undercuts his claim that he truly desired a "meaningful education" and made the necessary effort, because if this had been the case, Creighton would not have needed to force him to get the tutoring he now says was so badly needed. Anyway, Creighton could not make Ross accept tutoring. And Ross cannot point to a single contractual agreement that entitled him to red-shirt.
Ross also claims that Creighton "failed to provide funds . . . to complete his college education and obtain a degree." Amended Complaint para. 31. But again, he cannot point to a single contractual provision guaranteeing that he would complete college and earn a degree. It also should be underscored that Ross makes no claim that Creighton violated any of its obligations to Westside Prep.
Ross appears to argue, however, that this approach is too literal, and that he should not be expected to point to express promises that Creighton did not keep. His reasoning is that his agreement with Creighton was subject to an "implied duty of good faith and fair dealing." Amended Complaint para. 25. These implied open-ended duties required Creighton "to provide a reasonable opportunity to the plaintiff to obtain a meaningful college education and degree, including for the defendant to do what was reasonably necessary (including, but not limited to, providing tutoring services, financial assistance as needed and time for the plaintiff to study) to enable the plaintiff to obtain a meaningful college education and degree." Amended Complaint para. 26. No limits to these duties are suggested.
In short, Ross asks this Court to supply him open-ended terms that were not bargained for or agreed to by Creighton or Ross. Although perhaps within the Court's power (see A. Farnsworth, Contracts § 7.17 (1982)), the use of this power undoubtedly is subject to the Court's discretion. In exercising this discretion, the Court must ask whether it should take on the job of supervising the relationship between colleges and student-athletes or creating in effect a new relationship between them. This in turn depends on whether the Court is institutionally situated, much less competent, for the task. Ross's complaint alleges that he was recruited pursuant to the rules of the National Collegiate Athletic Association and the Missouri Valley Conference. On the function of the NCAA, see generally National Collegiate Athletic Ass'n v. Board of Regents of the University of Oklahoma, 468 U.S. 85, 82 L. Ed. 2d 70, 104 S. Ct. 2948 (1984). Absent an express contractual provision giving this Court a basis to act, the Court believes it should leave the supervision of college athletics to private regulatory groups such as the NCAA, which presumably possesses the staff and expertise to carry out the job. The Court will not assume this regulatory role through the guise of enforcing implied contractual terms and duties.
For the reasons stated above, the Court denies Creighton's motion under Rule 12(b)(2) to dismiss for lack of personal jurisdiction. The Court grants Creighton's motion under Rule 12(b)(6) to dismiss the case for failure to state a claim upon which relief can be granted. The dismissal is with prejudice. The Court will enter judgment in favor of Creighton and against Ross.