Maine Supreme Court Hears Case on National Fraternity Liability

Tim Burke, Manley Burke, tburke@manleyburke.com

Now awaiting decision following oral argument on December 10, 2014 is a case in the Maine Supreme Judicial Court seeking to impose liability on the National Fraternity for the misconduct of an individual member of a chapter at the University of Maine.¹

The basic facts are that the Plaintiff, Elizabeth Brown, attended a Delta Tau Delta party at the University of Maine at Orono in September, 2010.  Among the admitted facts are that before arriving at the party the Plaintiff engaged in “pregaming” alone at home, having three alcoholic drinks to get “a buzz” before going to a series of parties.  She had a fourth drink at another party before arriving at the Delta Tau Delta party.  There, she asked Joshua Clukey, a member of the Chapter who had invited her to the party, if she could go to his room with him and stow her purse there during the party.²  The two were in Clukey’s room for about ten minutes total.  While there Clukey insisted they “do shots” and they had two rounds of drinks.  Clukey tried to make out with the Plaintiff.  She rebuffed his advances but he shoved her, causing her to loose balance and she fell on the bed.  Clukey tried to insist that she stay longer to see his DVD collection.  When Plaintiff stood up to do so, Clukey tried to kiss her and grabbed her breast cupping it outside her clothing. Then Clukey stumbled and fell onto Plaintiff.  Clukey briefly locked Brown in his room while he went to the bathroom.  Upon his return she was able to leave his room and return to the party.  The Plaintiff did not report the incident to Campus Police until two days afterwards.

Clukey had developed a history prior to the incident with Plaintiff of “drinking a lot, getting into fights, arguing and being belligerent with other brothers and had punched and kicked holes in the wall and damaged the house.”    Plaintiff relies on that prior conduct by Clukey for the argument that the National Fraternity should have been aware of Clukey’s misconduct and taken steps to deal with it.  There is, however, nothing in the record to indicate that the National Fraternity knew of Clukey’s conduct.  Quickly after the incident, Clukey was expelled from the Fraternity.

Clukey plead guilty in criminal court to both simple assault and furnishing alcohol to a minor. He was dismissed from the fraternity. The university imposed resetrictions on him to insure he did not come in contact with Brown.

Brown filed suit against the National Fraternity, the Delta Tau Delta National Housing Corporation and Mr. Clukey.  She made claims for false imprisonment, assault, negligence and negligent infliction of emotional distress.  At mediation a settlement was reached with Clukey.  The trial court ultimately granted Motions to Dismiss and for Summary Judgment in favor of the Delta Tau Delta defendants.  It was the granting of those Motions that is the subject of the Appeal to the Maine Supreme Judicial Court.

As a matter of law, Plaintiff relies heavily on the case of Stanton vs. University of Maine System³ which reversed a grant of Summary Judgment in favor of the University System.  That case involved the sexual assault of Stanton, a seventeen year old minor who attended a preseason soccer program at the University of Southern Maine.  Like other student athletes in the Program she was allowed to stay in the dormitories on campus.  She attended a party, met a young man who offered to walk back to her dormitory with her.  She used her key admitting both herself and the young man to the dormitory.  While she went to her room by herself, the young man showed up shortly thereafter and proceeded to sexually assault her.  In reversing the grant of Summary Judgment on behalf of the University, the Supreme Court noted:

“That a sexual assault could occur in a dormitory room on a college campus is forseeable and that fact is evidenced in part by the security measures that the University had implemented.”

The Stanton Court cited with favor a Massachusetts Supreme Court decision⁴ which “recognized that the concentration of young people, especially young women, on a college campus, creates a favorable opportunity for criminal behavior, that many of the students tend to be away from home for the first time and may not be fully conscious of the dangers that are present, and thus that the threat of criminal behavior is self-evident.”

The Stanton Court adopted that observation and found that “the University owed a duty to reasonably warn and advise students of steps they could take to improve their personal safety.”  Because the Plaintiff in the Stanton case asserted that the University had failed to warn her of any dangers or explain the security measures in place, the Court found that there was a genuine issue of material fact, reversed the grant of Summary Judgment and sent the matter back to the trial court.”  773 A 2^nd 1045, 1050.

Counsel for the Fraternity Defendants countered that the critical question in this case is whether the Delta Tau Delta Defendants had a duty to the Plaintiff.  Counsel for the Fraternity Defendants relied on an earlier Maine case Hughes v. Beta Upsilon Bldg. Assn, 619 A.2d 525 (ME, 1993) which found that the Fraternity Building Association did not have a duty to a Plaintiff who had been injured at a Chapter sponsored event.  The Brown trial court had found Hughes to offer “better guidance” than Stanton with respect to the duty of care.  Counsel for the Fraternity Defendants was also able to rely on fourteen different cases from twelve states all of which supported the logic that National Fraternities do not create or assume a duty of care merely because they charter Chapters, offer programming and support of the National Fraternities’ values, and promulgate rules which Chapters and their members are expected to abide by.

At oral argument, counsel for Brown was challenged by Justice Jagar for his failure to sue the members of the Chapter.  “You are asking us to leap over the first level of responsible and get to a national chapter.”  Justice Gorman went onto say “If the local ones, should have known that there was foreseeability here because he was fighting, he was drinking too much, he was damaging some of the Chapter’s property, if you have not sued the people who knew that, how can the National level be held responsible for their actions”?

Not all of the Justices appeared quite so sympathetic to the Fraternity.  Justice Alexander suggested that:

“The whole thing about fraternities, national fraternities is to basically promote places on individual college campuses where underage drinking can go on and conduct that wouldn’t be allowed, or sometimes occur that is not supposed to occur at college dorms and stuff like that?  I mean the whole thing, the sort of frat boy national fraternity image, that’s what the idea is.  Those that want to join Fraternities are looking for a place to, you know, ignore drinking limits, take advantage sexually of people who are difficult and things like that.”

Finally Justice Alexander suggested to Plaintiff’s counsel that his client “had an issue over assumption of risk of going to a place like this?”

Justice Alexander did not spare counsel for the Fraternity Defendant either pointing out that:

“We are talking about national organizations, which are designed to promote certain student conduct.  These are the same national organizations that forty or fifty years ago required students who were participating in them, and a lot did, to discriminate against blacks.  It required people to discriminate against Jews and other things, now the only purpose of these national organizations seems to be to promote this on-campus life style of casualness about drinking, casualness about sexual assaults, casualness about you know, mistreatment of women.”

Justice Clifford responded pointing out that:

“I think that view is a little jaded to me about fraternities.  There are a lot of benefits that the fraternity has, especially self-governance, and from my experience with fraternities, the fraternities are self-governing and pretty much control that kind of conduct more than, in many instances, in most instances, more than occurs in dormitories where there is not that kind of supervision of the self-governing unit”.

This case is likely to be decided by Maine’s highest court sometime in the first half of 2015.  Fraternal Law will of course report on that decision.

Fraternal Law  expresses its thanks to Carol Eisenberg, one of the attorneys for the Fraternity Defendants, who provided us with access to the court papers filed with the Maine Court including the Briefs of the Plaintiff, the Brief filed on behalf of the Fraternity Defendants and the Appendix represented in the footnotes herein.

1 Elizabeth Curtin Brown v. Delta Tau Delta, et. al, Law Docket No. PEN 14-139.

2 The facts described are taken directly from admitted facts that are a part of the record before the Court.

3 Stanton v. University of Maine System, 2001 ME 96, 773 A.2d 1045.

4 Mullins v. Pine Manor Coll., 389 Mass 47, 449 N.E. 2d 331 (1983).