Maine Supreme Court Says National May Be Liable

Tim Burke, Manley Burke, tburke@manleyburke.com

On June 18, 2015 the Maine Supreme Judicial Court issued a decision¹ contrary to a long line of cases around the country which have ruled that National Fraternities will not typically be held liable when one of their members violates the law, rules, or policies of the fraternity.  Instead as a result of this decision, Delta Tau Delta will likely face trial for a sexual assault committed at its University of Maine’s Orono campus chapter house.

As had happened in more than a dozen cases around the country, the National Fraternity –and in this case its housing corporation too – had been dismissed on summary judgment by the lower court.  That dismissal was appealed to Maine’s highest court.

This case was originally reported on in the January 2015 issue of Fraternal Law and drew particular attention because of the comments about fraternities made by one of the 5 justices during oral argument.  Justice Alexander said “those who want to join fraternities are looking for a place to, you know, ignore drinking limits, take advantage sexually of people…”  He noted that historically fraternities did a lot to “discriminate against blacks…discriminate against Jews…Now the only purpose of these national organizations seems to be to promote this on-campus lifestyle of casualness about drinking, casualness about sexual assault, casualness about, you know, mistreatment of women.”  It sounded like a bad sign, and it was.

The case grew out of a party at the Delta Tau Delta House.  The plaintiff had arrived at the house party at about 11:00 or 11:30 that night.  She had already pre-gamed.  She asked the DTD member who invited her if she could put her purse in his room.  He took her up to his room, apparently walking past a member whose function was to limit access to the upper floors.  She was sexually assaulted when the member fondled her through her clothes and displayed the intention to attempt more.  But the victim was able to get out of the room.

There is some evidence in the record which indicates the leadership of the chapter had concerns about the conduct of the perpetrator.  The chapter apparently did not take any action against him in spite of having that knowledge prior to the party.  Shortly after the assault, he was dismissed from the fraternity.

The victim sued the perpetrator, the national fraternity and the national housing corporation which owned the house.  She did not sue the chapter.  In Maine, an unincorporated association like the chapter cannot sue or be sued.  The plaintiff could have sued other individual members of the chapter, but did not.  The perpetrator, ultimately settled, but the plaintiff continued to pursue damages against both the national and the national’s house corporation.

Ultimately, motions for summary judgment were granted in favor of both the national and its house corporation.  That was appealed to the Supreme Court.

In reversing the summary judgement granted to Delta Tau Delta, the 4 member majority said:

“It is foreseeable that allowing a group of eighteen-to-twenty-year-olds control over a residence where alcohol-related parties are held presents the potential for misconduct, including sexual assault.  A national fraternity knows, or should know, that social events carried on in a building that houses one of its local chapters presents the potential for sexual assault, particularly where alcohol consumption is an integral part of the event.”

“DTD effectively handed over a residential building to a group of college students, and in so doing so it should have anticipated that alcohol-related parties on the premises would follow, as could the social problems that accompany such activities.  It therefore had a duty to exercise reasonable care in providing a reasonably safe environment for any social invitee to an event at the fraternity house.”

Justice Alexander, who had been verbally critical of fraternities during the oral argument of the case would have also reversed the summary judgement granted to the national housing corporation saying in his written decision:

“Ownership of the Orono chapter’s real estate, and creation of the local chapter as an unincorporated association of students, is part of a sophisticated legal mechanism, managed by DTD, to attempt to immunize its local chapter real estate from court process and liability for foreseeable lawsuits claiming injury from underage drinking, excessive drinking, sexual assaults, and other claims that, as the court recognizes, are the foreseeable result of ceding control of real estate to eighteen-to twenty-two-year olds.”

The fifth Justice, who would have upheld the Motions for Summary Judgment granted to both the national and its house corporation, noted correctly in a footnote of his dissent that:

“National fraternities and building associations have consistently been determined not to have a duty to a local chapter’s social invitees when they do not provide oversight or exercise control.”

He went on to reference in his dissent a series of decisions which have sided with national fraternities, particularly emphasizing last year’s decisions by the Indiana Supreme Court when he stated:

“A national fraternity that implements clear discipline policies and educates against sexual violence and excessive drinking should not be deemed to have thereby assumed a legally enforceable duty of care to all social invitees of national members of local chapters.  As the Indiana Supreme Court² stated, a ‘national organization … should be encouraged, not disincentivized, to undertake programs to promote safe and positive behavior and to discourage hazing and other personally and socially undesirable conduct,’ which it might not do if those efforts would render it liable for any misconduct of local members.”

The result reached by the Maine Supreme Court remains in the distinct minority of cases involving national fraternities.  But, in part because it is the most recent decision, and in part because of the intense national attention focused on sexual assault, this case is a shot across the bow of national fraternities and a warning regarding alcohol in fraternity houses.

1 Brown v. Delta Tau Delta, 2015 ME 75.

2 Yost v. Wabash College, 3 N.E.3d 509, (Ind. 2014) and Smith v. Delta Tau Delta, 9 N.E.3d, 154 (Ind. 2014).