DUTY TO FRATERNITY GUESTS EXPLAINED BY INDIANA COURT

Timothy M. Burke, Manley & Burke

In July, the Supreme  Court of the State of Indiana issued decisions in three cases which may directly affect the responsibility of  a fraternity chapter or a house corporation to  protect  its tenants  or visitors  from  crimes  committed  by third parties.

One of those cases tested the liability of a fraternity chapter and its  national  for  a  sexual  assault  committed  during a party in the house.¹ The second case involved the responsibility of the owner of a house at  Purdue University which housed co-ed Evans Scholarship students to have prevented the sexual assault by  one  of  the  tenants  on  another  of the tenants.² The third case considered a supermarket and shopping center’s responsibility for an assault by third parties on a customer.³

[Those chapters with any history of problems at their parties need to exercise particular caution since Indiana courts are far more likely to find that such chapters have a duty to exercise reasonable care to protect guests.]

In each of these instances the Supreme Court asked the question whether or not those responsible  for  the property had a duty to take reasonable care to protect the victim from the criminal conduct of a third party. In each case the Court applied a “totality of the circumstances” test to determine whether or not the criminal act of the third party was reasonably foreseeable. If it was, the Court found the existence of a duty to exercise reasonable care. In applying the same test to the three separate sets of fact, the Supreme Court reached different conclusions.

In the case of the Evans Scholar House, the Court found that the owners of the house had no duty to have protected the female plaintiff against the  sexual  assault  by  one of her male housemates. The  Court  considered  the  fact  that all Evans Scholars were required  to  live  in  the  same  house and that there had been “sexually-charged comments to the female scholars and  female  scholars  were  sometimes  placed  in embarrassing situations (such as being tricked into  walking in on males watching an X-rated movie).” Yet the Court stated that “while the  evidence  casts  the  Evans  Scholar House. in a poor light and suggests that living in the Evans Scholar House as a woman was sometimes untenable,  it does not show that a legal duty existed.” The Court made particular note of the fact that there was no evidence of  prior violent  acts or sexual assaults at the Evans House.

In the Delta Tau Delta case the Court reached a different result. In that case, Tracy Johnson, an undergraduate student at Indiana University, had attended a party at the chapter house in October of 1990. Beer was served at the party. Pledges drew beer from the keg into pitchers and then poured it into cups to serve the guests. Around midnight Joseph Motz, an alumnus of the chapter, told  Johnson  he would drive her home but “only after  he  had  sobered  up.” They went to the room where Johnson was staying  where they both had drinks of hard liquor. Ultimately, Motz is alleged to have sexually assaulted Johnson. In holding that the chapter owed Johnson a duty of reasonable care, the Court considered the facts that within two years of the incident a student had been assaulted  at a chapter  party  and a blindfolded female guest at another party was made against her will to drink alcohol until she was sick and was spanked when she refused to drink. The Court also considered  that  national  Delta Tau Delta had provided information on date rape to the chapter just a month before the party at which Johnson was alleged to have been attacked. The information from national alerted the chapter that one in four college women had been raped or suffered attempted rape and that “fraternities at seven universities have recently experienced legal action taken against them for rape  and/or sexual assault.” Under  those  circumstances, the Court stated that: “we believe that  to  hold  a  sexual  assault  in this situation was not foreseeable, as a matter of law, would ignore the facts and allow DTD to flaunt the warning signs at the risk of all of its guests.” The Court ruled therefore that the chapter owed a duty of reasonable care to its guests and sent the case back to be tried to a jury to determine whether or not that duty of reasonable care had been breached. ⁴

[The more that a chapter can document that it has taken steps to provide a reasonable degree of protection to its guests, the more likely it is that a court would ultimately find that the duty, if it has been found to exist, has not been breached.]

In the final case a shopper at a Kroger store was assaulted by individuals who had apparently just concluded shoplifting from the store. The Court held that Kroger could reasonably foresee “that a shopper might be injured by crime while shopping in or around the Kroger store” and therefore a duty to exercise reasonable care toward the shopper existed.  In  reaching that conclusion the Court considered that crime around that particular store was not uncommon. In the five years preceding the assault in the Kroger case, calls to police for crimes of violence had averaged one a month and, according to the Court, “injuries to a shopper were even more foreseeable given Kroger’s experience with shoplifters using force to avoid being caught.”

For fraternities in the State of Indiana or in any state which adopts the same rules, these cases are a clear  warning  that chapters cannot ignore the possibility of assaults, sexual or otherwise, occurring at their parties or even in the private rooms of a fraternity house. Those chapters with any history of problems at their parties need to exercise particular caution since Indiana courts are far more likely to find that such chapters have a duty to exercise reasonable care to  protect  guests. The danger for those chapters is that courts are likely to view past problems as predictors making future assaults foreseeable.

Reasonable care should include insuring that alcohol is not provided to minors, or to those who have already had too much to drink. It can include providing alternative transportation home.   In the Delta Tau Delta case, for example,  twice  the victim searched in vain for a ride home but was left to rely on the promise of her assailant to take her home “after he sobered up.” The more that a chapter can document that it h s taken steps to provide a reasonable degree of protection to its guests, the more likely it is that a court would ultimately find that the duty, if it has been found to exist, has not been breached. Having a duty to exercise reasonable care toward a guest does not require a guarantee that no assault will ever occur. It is simply a requirement to take reasonable steps to protect guests.

¹ Motz v. Johnson, 712 N.E.2d 968, 1999 Ind. LEXIS 419 (decided July 12, 1999).

² L.W. v. Western Golf Association, 712 N.E.2d 983, 1999  Ind. LEXIS 421 (decided July 12, 1999). See also Fraternal Law, September 1997 “Good News for House Corporations” for discussion of this case in the Court of Appeals.

³ Vernon v. Kroger Co., 712 N.E.2d 976, 1999 Ind. LEXIS 420 (decided July 12, 1999).

⁴ The Court did find that national Delta Tau Delta had not gratuitously or voluntarily accepted any duty of care and as a result granted summary judgment in favor of the national fraternity.

DIPLOMA REVOKED IN M.I.T. DRINKING DEATH

In September of 1997, Scott Krueger, a pledge of the Phi Gamma Delta house at Massachusetts Institute of Technology (MIT), died following an alleged Animal House Night Party at which pledges were allegedly required to drink alcohol. Mr. Krueger died of alcohol poisoning and asphyxiation caused by his own vomit. MIT has now revoked, for five years, the diploma of a 1998 graduate who was the “pledge trainer” for the fraternity. The university claims, according to an article  published on August 13, 1999, in The Chronicle of Higher Education, that the pledge trainer served the alcohol to Mr. Krueger.

As previously reported in Fraternal Law, ¹ Mr. Krueger’s death resulted in an indictment of the fraternity chapter for criminal manslaughter and hazing. When the national fraternity dissolved the chapter, the criminal case was unable to proceed.

¹     See Fraternal Law, Volumes: 66, “Criminal Prosecution at MIT;” and 67, “Stronger Action Urged in MIT Drinking Death Case.”