ELEVENTH CIRCUIT: NO DUTY TO PROTECT MEMBERS FROM CRIMINAL ACTS OF THIRD PARTIES

Tim Burke, Manley Burke, tburke@manleyburke.com

Richard Wilder attended a party at the Theta Chapter of Sigma Nu in Tuscaloosa, Alabama.  Toward the end of the evening, two individuals who were not members of the Chapter, nor invited to attend the party, entered the house and were noticed by some of the brothers when they tried to help themselves to beer.  They were asked to leave.  Matters quickly became ugly. One of the uninvited guests drew a butterfly knife and used it to ward off a group of the party attendees who wanted them gone.

The intruders did leave the house, but epitaphs and racial slurs were flying back and forth.  Once out on the front yard of the house, one of the intruders launched a beer bottle back toward the crowd.  According to the court,¹ “the fraternity members returned in kind.  Violence erupted, and within moments, Gibson [one of the intruders] stabbed Wilder in the head with his butterfly knife,” seriously injuring him.

Wilder sued Gibson and the National Fraternity, the Chapter and the House Corporation.  Wilder asserted negligence, respondeat superior, negligent supervision, and wantonness claims.  The trial court granted the defendants’ motion for summary judgment.

On August 3, 2010, the 11^th Circuit of the United States Court of Appeals unanimously upheld the trial court’s decision.  The court recognized that the general rule in Alabama was the absence of some special relationship or circumstances “a person has no duty to protect another from criminal acts of a third person.”  In essence, what the court said was that since no one at the fraternity party had any legal duty to protect Wilder from criminal acts of Gibson, the third party, no one could have been negligent in failing to do so.  Without negligent conduct, there would be no vicarious liability imposed on the organizations since no members were negligent.  The Court concluded, “Rarely does a premises owner have a legal duty to protect others from the criminal acts of a third party.” In circumstances like this, only when the party knows or should know that a particular type of crime is probable does it have a duty to protect its guests. The facts in this case fail to create the kind of foreseeability necessary to impose on the fraternity and its members a duty to protect their guests. In the absence of a legal duty, there can be no negligence, negligent training, vicarious liability, or wantonness

While Sigma Nu and its members had no liability in this case, it should not be viewed as a recommendation to engage in self-help when unwanted intruders enter a fraternity party, especially when someone pulls out a knife.  Certainly, at that point, 911 should be called.  Chapter leaders should attempt to move their members and guests away from any potential treat of harm and attempt to maintain calm.  But at least in Alabama, even if that fails, the social hosts may have no responsibility for injuries resulting from the criminal acts of unwanted intruders.

¹  Wilder v. Sigma Nu Fraternity, Inc., et al., Case No. 10-10996 (U.S. Court of Appeals, 11^th Circuit, August 3, 2010).