Indiana District Court Denies MSJ in Sexual Assault Case

Tim Burke, Manley Burke, tburke@manleyburke.com

In the June 2018 issue of Fraternal Law we reported on the status of Jane Doe No. 62 v. Delta Tau Delta, Theta Alpha Chapter¹ in which the federal court judge had asked the Supreme Court of Indiana to provide guidance on four certified questions relating to the obligations under Indiana law of a fraternity and fraternity chapter to prevent sexual assaults by a member. Pending the responses to those questions, the federal court, while granting part of the fraternity’s Motion for Summary Judgment, held the remaining negligence claims against the chapter in abeyance pending the guidance from the Indiana Supreme Court. In the end, the Supreme Court declined to provide any such guidance.²

On July 11th, United States District Court Chief Judge Jane Magnus-Stenson issued a decision denying the remainder of the Fraternity Chapter’s Motion for Summary Judgment. In doing so, the Court reviewed the legal standards for a motion for summary judgment, noting that the Court must view the record “in the light most favorable to the non-moving party” and cannot weigh the evidence or make credibility determinations. In short, if relevant facts critical to deciding a case are in dispute, any doubt is resolved against the party making the motion. That was the high burden that the Chapter faced. In this case, one of the critical issues was whether or not the Chapter had notice and knowledge of a prior accusation of sexual assault by the member who was criminally charged with the sexual assault of the plaintiff, and ultimately pled guilty to a charge of battery.

Judge Magnus-Stenson recognized that Indiana law had long provided that the possessor of a property owed an invitee reasonable care for the invitee’s protection. The Judge also recognized that as the law had developed, there was a difference between the duty regarding conditions on the land and the duty as to activities on the property. Much of the distinction was based on foreseeability. That is, did the defendant have knowledge of facts which reasonably should have led them to recognize the likelihood of the injury.

For example, if the house has a known broken step, it is foreseeable that someone could be hurt walking down the stairs. This is a condition on the land. On the other hand, serving hard alcohol to under-aged new members is an example of an activity on the property where the potential for harm is likely to be viewed as foreseeable.

In the critical paragraph of the decision, the Judge noted:

In this instance, considering the ‘broad type of plaintiff’ and the ‘broad type of harm,’ as well as defendant’s knowledge, the Court concludes that the duty implicated here can be described as follows: the broad type of plaintiff is an invitee to a social fraternity event, and the broad type of harm is sexual assault by a member previously alleged to have committed sexual assault, where the fraternity knew or should have known of the prior allegations. While the Court concludes that a duty arises from the facts viewed in the lights September 2018 Fraternal Law 4 most favorable to Ms. Doe, the Court acknowledges that there is a genuine dispute of material fact as to whether any prior allegations of sexual assault were made, and if so, whether [the Chapter] knew or should have known about them. [The Chapter] argues that even if it did have knowledge of the prior sexual assault allegations, those allegations were either too attenuated or too stale to constitute knowledge relevant to this particular incident, but this Court declines to determine as a matter of law that information received 18 months prior to an incident is per se insufficient to constitute relevant knowledge, particularly when the information is an allegation of sexual assault.

The Court went on to summarize the elements that the plaintiff would be required to prove should the case go to trial, stating: 1) [The Chapter] was the occupant of the property; 2) Ms. Doe was an invitee on the property occupied by [the Chapter]; 3) Ms. Doe was injured as a result of a sexual assault by a [Chapter] member on the property; and 4) [The Chapter] (a) knew or should have known that the allegations of a prior sexual assault had been made against the member; and (b) failed to use reasonable care to protect the invitee against the danger posed by the member.”

Critically, the Court’s conclusion succinctly summarized the decision this way:

A social fraternity owes a duty of care to its invitees to protect them from sexual assault by a fraternity member previously alleged to have committed sexual assault, where the fraternity knew or should have known of the prior allegations.

In the final sentence of the decision, the district court judge gives the following assignment to the magistrate judge^.3

The Court requests that the magistrate judge confer with the parties at her earliest convenience to discuss a possible agreed resolution of this matter.

1 Jane Doe No. 62 v. Delta Tau Delta, Theta Alpha Chapter, Case No. 1:16-CV-01480-JMS-DMI (D. Ind. 2018).

2 Indiana University, the National Fraternity and the House Corpo